Ferron and Ferron

[2016] FCCA 579

FEDERAL CIRCUIT COURT OF AUSTRALIA

FERRON & FERRON [2016] FCCA 579

Catchwords:
FAMILY LAW − Children’s time with father − children’s wishes to keep time the same.

Legislation:

Family Law Act 1975 (Cth), ss.4, 60B, 60CA, 60CC, 65DAA

Goode & Goode [2006] FamCA 1346

Applicant: MS FERRON

Respondent: MR FERRON

File Number: DGC 347 of 2014

Judgment of: Judge Phipps

Hearing date: 10 & 11 June & 18 September 2015

Date of Last Submission: 18 September 2015

Delivered at: Dandenong

Delivered on: 21 March 2016

REPRESENTATION

The Applicant: Appearing on their own behalf

Counsel appearing for the Respondent on 11 & 12 June 2015:	Mr Marchetti
Counsel appearing for the Respondent on 18 September 2015:	Mr Scriva
Solicitors for the Respondent:	Battiato Drane & Co

ORDERS

1. That all previous orders are discharged.

2. That the mother and father have equal shared parental responsibility for the children X born (omitted) 2004 and Y born (omitted) 2006.

3. That the children live with the mother.

4. That the children spend time and communicate with the father as follows:

   (a)During school terms:

   (i)Each alternate weekend from after school Friday until before school Monday;

   (ii)Each alternate week from after school Tuesday until before school Wednesday;

   (iii)In the alternate week to (ii) from after school until 7.00pm on Tuesday.

   (b)For half school term holidays as agreed and if not agreed the first;

   (c)For half the summer school holidays week about as agreed and if not agreed commencing with the first week;

   (d)On the children’s birthdays and the father’s birthday as agreed;

   (e)On Father’s Day if not a day the children are spending time with the father from 10.00am to 6.00pm;

   (f)By telephone and electronic communication at all reasonable times;

   (g)Otherwise as agreed.

5. That the children’s time with the father is suspended as follows:

   (a)The time pursuant to paragraph 4(a) during all school term and school summer holidays;

   (b)For times as agreed on the children’s and mothers birthdays;

   (c)If Mother’s Day is on a day the children are spending time with the father from 10.00am to 6.00pm on Mother’s Day.

6. For the purposes of the children’s time with the father the father shall collect and deliver the children at school or at the mother’s residence.

7. The mother and the father are each restrained by injunction from:

   (a)Denigrating the other parent to or in the presence of the children or permitting any other person to do so;

   (b)Discussing family law proceedings with the children or permitting any other person to do so.

8. Each parent at that parent’s expense is entitled to receive copies of school reports, school photographs, circulars, notices and the like and to attend all school events normally attended by parents.

9. Otherwise all extant applications are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Ferron & Ferron is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 347 of 2014

MS FERRON

Applicant

And

MR FERRON

Respondent

REASONS FOR JUDGMENT

1. The dispute is in relation to the amount of time the parties two children should spend with their father.  The children are X born (omitted) 2004 aged 12 and Y born (omitted) 2006 aged 10.  The mother and father agree on orders for equal shared parental responsibility and that the children live with the mother.

2. The mother proposes the children spend time with the father on alternate weekends from Friday night to Sunday morning and each week on Wednesday from after school until 7.00pm or 8.00pm.  She proposes that these times continue during school holidays.  She makes no specific proposals for birthdays and Father’s Day but says that the parties have been able to work them out.

3. The father's proposal is that the children spend time with him on alternate weekends from after school Friday until before school Monday and alternate weeks from after school on Tuesday until before school Wednesday and the other alternate Tuesday from after school for an evening meal.  He proposes that the children spend half school holidays with him, week about during the summer holidays and there be provision for special occasions.  His proposal coincides with the recommendation of the Family Report.

4. The parties agree on an order for equal shared parental responsibility and s.65DAA of the Family Law Act 1975 (Cth) requires that I consider whether equal time is in the best interests of the children and reasonably practicable or if not equal time substantial and significant time. The parties do not propose equal time and so I must consider substantial and significant time. The father’s proposal coincides more with the description of substantial and significant time in s.65DAA (5).

5. The pathway through the legislation described by the Full Court of the Family Court of Australia in Goode & Goode [2006] FamCA 1346 is that after setting out the proposals the court should describe the issues, the matters agreed and then consider the best interest considerations. Section 60CA provides that the best interests of the children is the paramount consideration. The considerations the court must take into account in determining what is in the best interests of the children are contained in s.60CC. These must be considered in the light of the objects and principles of the children’s provisions of the Family Law Act 1975 (Cth) contained in s.60B.

6. The issues are described above, that is the amount of time the children should spend with their father.  The particular issues relevant to the best interest considerations are the views of the children, the children’s relationship with each parent and each parent’s ability to provide the needs of the children.

7. Both parents were born and raised in (religion omitted) families in (country omitted).  The father migrated to Australia in his early 20’s.  He met the mother in (country omitted) in (omitted) 2000 and they married in (omitted) 2000.  The mother came to live in Australia in (omitted) 2000.  In (omitted) 2001 she left the marriage and returned to (country omitted).  The couple reconciled after several months in (country omitted) and returned to Australia.  Separation occurred in June 2013 when the mother left the home with the children.

8. The proceedings originally concerned both property and children.  The parties reached agreement on property and final property orders were made in September 2015.  The father continues to live in the former matrimonial home and the mother lives with the children in a rental property.

9. The mother alleges controlling and coercive behaviour by the father during the marriage and subsequent to separation obtained a family violence intervention order.  By the time of the hearing the parties had been separated for two years and the children had been spending and continue to spend a substantial amount of time with the father.  Interim orders made on 25 March 2014 provide for the children to spend time with the father each alternate weekend from Friday after school until before school Monday, each Wednesday from after school to 6.00pm and for the first half of all school term holidays.  A further order on 9 December 2014 provided for the children to spend time with the father from 19 December 2014 until 24 December 2014 and from 30 December 2014 until 14 January 2015.  That was half the school holidays.

10. The mother has had a difficult time.  She married the father and came to a different environment with none of her own family support.  The marriage was in trouble fairly early on then the parties reconciled and she returned to Australia.  She contracted breast cancer and had a mastectomy, radiotherapy and a hysterectomy and she has suffered from some depression issues.  Notwithstanding this Ms M, who prepared the Family Report describes the mother as presenting as an intelligent, strong willed and gutsy woman.

11. The marriage was an unhappy one but whether the father’s behaviour was as the mother describes is difficult to assess.  The mother, understandably, sees things from her point of view.  She has a poor opinion of the father and his ability to care for the children.  She considers that the children are unhappy with the current arrangements.  This is contrary to what they told Ms M.  It seems that the mother has a different view of what happened in the interviews with Ms M.

12. The relationship between the parents before separation and the father’s behaviour is now background to the relevant issues of the children’s current relationship with each parent, their views and the ability of each parent to care for the child.  In determining what is in the best interests of the children I do not need to make any specific findings about the father’s behaviour towards the mother, or vice versa, prior to separation.

13. One issue needs some attention.  The father is a member of a (omitted) and this is obviously important for him.  One of the mother’s complaints is that the father has taken the children to (omitted) events and in particular she complains that he has attended meetings on Sundays at the (omitted) in (omitted) and left the children outside the meeting room in a large empty building.

14. One of these occasions was 26 April 2015, a Sunday, the children were with the father.  The father attended a meeting at the centre and the children went with him.  The mother knew this was occurring and rang the Emergency Services – Triple Zero (000).  Three police officers attended.  The mother subpoenaed one of the officers, Leading Senior Constable F, and she gave evidence.

15. She said the police attended at 10.30am.  The building was locked and the police officers and the mother were let in by a security guard.  The mother said she thought her children were outside a room upstairs while her husband was in a meeting.  The police went upstairs and met the two girls.  They were sitting in a foyer.  Leading Senior Constable F met and spoke to the father.

16. She explained that the children were not in the hall part of the building but its business offices. She said the children were in an open space which had couches around it and there were corridors with toilets.  There was a corridor which seemed to have business offices down it and she could hear voices there.  The girls were sitting on a couch in the foyer that led to the business offices.  They had books and video games or something to play with and there were some munchies.

17. Leading Senior Constable F said the children were a bit mixed up about what they wanted to do.  One of them said she didn’t want to stay but wanted to go and then they said there was a party that they wanted to go to and eventually they said they would stay with the father so they could go to the party.

18. Leading Senior Constable F said she had no issues with leaving the children with the father.  They had access to a toilet.  They had munchies.  It was not neglect.  It might not have been the ideal situation and she had a discussion with the father about using his time more wisely with the children, maybe he could re-arrange his schedule.

19. This episode illustrates that the mother, perhaps understandably, is anxious about the children.  The father said that because of his particular duties with the (omitted) this was a meeting he had to attend.  While obviously it is not an ideal way for the father to spend his time with the children it does not constitute neglect.  The mother’s reaction suggests that he may be overreacting to other situations as well.

Family Report

1. Ms M interviewed the mother, the father and the children. The mother described the history of her relationship with the father, her own situation and her concerns about the father.  She described the father as autocratic and having a harassing personality.  She alleged he stole small items from shops, always bought cheap food, did not wash his hands after going to the toilet and was extremely miserly about household expenses.

2. Ms M assessed the father as having a forceful personality with set ideas, but was not abusive in his attitudes and behaviour towards the mother or the children.  He told Ms M that his relationship with the mother never was smooth due to the mother’s changing moods and irrational anger towards him.  He thought that was mainly due to the mother’s mental health issues.  He alleged the mother was a poor role model to the children.  He alleged she discussed private family matters with others with no discretion.

3. X said to Ms M generally she was happy with the way she spent time with her parents.  She explained that irrespective of what opinion she expressed, her parents would not be happy with it, therefore she concentrated on her sister’s wishes and opinions.  She said that Y did not wish to change the current regime.  Regarding arrangements during school holidays she felt that equal time with both parents would be alright.

4. Y cried a lot during her interview with Ms M.  She listed complaints about her father’s home.  She was worried about her mother’s cancer and her mother’s longevity particularly when she was away from her mother for extended periods.  She did not wish to be away from her mother for long periods even during school holidays.

5. Ms M says that during interactions with the parents the children seemed to have a positive relationship with both of them, although being young girls, it was not surprising to see that their relationship was more intimate with the mother.

6. Ms M observes that both parents have suffered and struggled through their ill matched relationship.  She said they appear to have had totally different expectations about their married life together.  She said both present as headstrong and unbending individuals with rigid personalities.

7. She noted that the mother had allowed the father to assist her when she was not capable of providing adequate care for the children and continued to do so.  The father had taken the children to and from the school virtually daily after separation and still continued to do that from time to time.

8. Ms M says that although the mother is critical of the father’s parenting of the children in some areas, by and large she considers the father appeared to provide adequately for the various needs of the children although he may not have the level of insight that the mother has regarding the children’s nature and behaviour.  The children did not complain that the father was abusive towards them.

9. Ms M says that the children are attached to both parents and will benefit from spending time with each of them. She notes that both indicated to the writer as well as to the parents during the report interview that they wished to continue the current regime with no major changes.  Her recommendations are as set out in the father’s proposal.  In her report she recommended half school holidays.  In her oral evidence she said it should be week about during summer holidays.

Best interest considerations

1. The first of the primary considerations in s.60CC is the benefit to the children of a meaningful relationship with each parent. The Family Report and Ms M’s evidence shows that the children do have a meaningful relationship with each parent. Despite her criticisms of the father the mother acknowledged in her oral evidence that he is a good father. The good relationship exists in the current circumstances and that in itself is an argument for keeping arrangements largely as they are.

2. The second of the primary considerations is the need to protect the children from harm.  Despite the mother’s misgivings about the father leaving the children alone outside meetings the evidence from the police officer shows that they were not at risk.  Nothing else suggests the children are at risk in the fathers care.

3. The first of the additional considerations is the views of the children.  The children’s views are clear from Ms M’s evidence.  They are generally happy with the current spend time arrangements.  Ms M accepts these as their genuine views.  The mother’s evidence to the contrary may be her perception or it may be that the children are saying to her what they believe she wants to hear.  To Ms M said she was told to express an “opinion” to the writer about her living arrangements.  She remarked “I don’t have any opinion, I feel like holding up a board that says don’t ask questions and don’t ask my opinion.  I can’t be myself anyway whether I express an opinion or not.”

4. The next of the additional considerations is the relationship of the children with each parent. Ms M’s observation shows them more attached to their mother but with a strong relationship with their father.  The mother’s proposal for a reduction in time and her opposition to overnight time during the week seems to stem in part from the belief that the children should spend more time with her and her belief about the children’s relationship with their father.  The relationship the mother describes is not as observed by Ms M.  Her observations do not support a reduction in the children’s time with their father.

5. The father has participated extensively in the children’s lives and so the evidence relevant to the next consideration, the extent to which each of the parents has participated in their lives, favours the father’s proposal for no reduction in time but a small increase.

6. The other matter of relevance is the ability to provide for the children’s needs.  Despite the conflict between the parents the children present as well cared for.  Ms M’s assessed the father as capable of providing for the children’s needs.

7. The mother alleges behaviour by the father which may come within the definition of family violence contained in s.4 of the Family Law Act1975 (Cth). I have described the relevance of this evidence.

Conclusion

1. Overall the evidence shows that the current time with the father suits the children.  Despite the obvious conflict between the parents the children have a strong relationship with each parent.  The children want the current arrangements to continue with the addition of the school holidays.  The father’s proposal meets the best interests of the children.

2. The mother opposes time during the week.  Much of this opposition seems to be based on the children’s homework.  The children can do the homework at their father’s residence.  Assisting with homework and ensuring that it is completed is part of a child’s relationship with a parent.  It comes within the requirements of substantial and significant time, something I must take into account.

3. One issue was a dispute between the parents whether the time should occur on Wednesday.  The mother on Wednesdays assists a charity.  In return she receives food she needs to supplement her income and care for the children.  This happens on Wednesday night.  If the children are not with the father Wednesday night she would need a babysitter the cost of which would not be worthwhile.

4. The father’s (omitted) meets on Wednesdays.  The children have been spending time with him on Wednesdays after school and that requires him to return them to the mother at 6.00pm so he can attend the (omitted) meeting.  It means that the time is to a certain extent rushed.  If the children spend overnight time with him it could not be on Wednesday.

5. The children’s relationship with the father will benefit from overnight time during the week and some time in the intermediate week.  The benefit to the mother and the children from her charity work is obviously important to the mother but not so large that it outweighs considerations about the children’s relationship with their father.

Reasonably practical

1. The orders are reasonably practicable.  The parties live close together and while they have a difficult relationship they are able to cooperate and communicate to the extent necessary to make the arrangements work.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date: 21 March 2016