Finch & Harris (No.2)
[2014] FCCA 2507
•5 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FINCH & HARRIS (No.2) | [2014] FCCA 2507 |
| Catchwords: FAMILY LAW – Children – parenting orders – interim orders – application to vary consent orders – where applicant residing temporarily in Sydney – best interests of the child – school attendance – sporting attendance – where father seeks that the child spends more time with him whilst the father is residing temporarily in Sydney – “micro-managing” parenting orders. |
| Legislation: Evidence Act 1995 (Cth), s.144 Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Finch & Harris [2014] FCCA 2152 Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 Nash & Reis [2013] FMCAfam 11 Re G: Children’s Schooling [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025 VR & RR [2002] FamCA 320; (2002) 29 Fam LR 39; FLC 93-099 |
| Applicant: | MR FINCH |
| Respondent: | MS HARRIS |
| File Number: | SYC 7893 of 2011 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 28 October 2014 |
| Date of Last Submission: | 28 October 2014 |
| Delivered at: | Sydney |
| Delivered on: | 5 November 2014 |
REPRESENTATION
| Applicant: | In person |
| Respondent: | In person |
ORDERS
UNTIL FURTHER ORDER
Orders 4.1.1, 39, 42, 43 and 44 made on 8 May 2013 are suspended.
For such time as the Father resides in Sydney, the child X born (omitted) 2003 is to spend time with the Father each alternate weekend during the school term from 6:30pm on Friday until 7:30pm on Sunday PROVIDED THAT if the Monday immediately following the Sunday is a public holiday then until 7:30pm on the Monday commencing on Friday 7 November 2014.
For the purposes of Order (2) above changeover between the parties at the commencement of the Father’s time with the child and at the conclusion of the Father’s time with the child is to be at a location to be agreed between the parties outside the ticket barriers at the (omitted) Railway Station.
On all weekends that the child is in the care of the Father in accordance with Order (2) above the father is permitted to enrol the child to play cricket at the (omitted) Cricket Club at the Father’s expense.
The Father is to meet all the child’s necessary expenses involved with his playing cricket at the (omitted) Cricket Club.
The parties are to do all acts and things necessary to enable the child X to attend the (omitted) High School at the commencement of the first school term in 2015.
The Mother is to ensure that the names, addresses and telephone numbers of both parents are recorded by the child’s school for contact in case of emergencies.
Each parent is entitled to receive copies of all school reports, newsletters, bulletins, information about school photographs and all other material usually forwarded to parents of children attending the child’s school.
Each parent is permitted to attend all activities usually attended by parents of children attending the child’s school including parent-teacher interviews, concerts, prize giving ceremonies and sporting events.
BY CONSENT UNTIL FURTHER ORDER the parties will share equally in the costs of the child’s High School enrolment and all school fees, school uniforms and shoes and for this purpose the Mother is to attend to payment in the first instance and advise the father by email of the amount paid within seven (7) days.
The Application is adjourned to Tuesday 24 March 2015 for further mention at 10:00 am.
IT IS NOTED that publication of this judgment under the pseudonym Finch & Harris (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 7893 of 2011
| MR FINCH |
Applicant
And
| MS HARRIS |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Father of a boy called X for a temporary variation of parenting orders that were made by consent on 8th May 2013. X was born on (omitted) 2003, so he is eleven years old. He will be twelve years old in (omitted). The child lives with his mother.
The parties have been involved in litigation on various occasions, in which contravention applications have been brought by one party against the other. There have recently been contravention proceedings brought by the Father against the Mother in respect of contraventions of the Consent Orders of 8th May 2013 (Finch & Harris[1]). Not surprisingly, the communication between the parties has been marked by acrimony.
[1] [2014] FCCA 2152
The Father has been living in Adelaide, but he has moved temporarily to Sydney for reasons of employment. He is unaware of the length of time for which he will be staying in Sydney, but it will certainly be until the end of the year and is likely to be until the end of March 2015. Consequently, he wishes to spend more time with his son whilst he is located in Sydney and have more involvement in the child’s life. Regrettably, the parties have been unable to agree as to how this should take place.
The Parties’ Proposals
The Father seeks to vary the earlier Orders and seeks these orders:
4.7That the Child spend fortnightly time with the Father while the Father resides in Sydney commencing at Friday 21 November 2014 at no later than 6:30 pm where handover is at the Sydney Domestic Airport Terminal, ending no later than 7:30 pm on a Sunday until the father leaves Sydney to reside in Adelaide;
4.8That the Child spend weekly Saturday time with the Father to attend the (omitted) Cricket Club matches commencing Friday 31 October at 6:30 pm where handover is at the Sydney Domestic Airport Terminal, ending no later than 3:00 pm on the Saturday continuing each Saturday until the end of the Child’s cricket season at about March 2015 where the Mother is to pay the father $100.00 for the Child’s cricket registration fee within 14 days of making these Orders.
49.1In relation to the Child’s High School preference for the 2015 year, that the father will enrol the Child into (omitted) High School and notify the Mother within 7 days utilising email facilities. The Mother will sign the Child’s High School documentation and return this to the Child’s High School notifying the Father utilising email facilities within 7 days of the Mother doing all acts and things to ensure that the Child is enrolled in High School in the 2015 year.
49.2The Mother will share equally in the cost of the Child’s High School enrolment and all school fees, including the Child’s uniform and shore cost, where the Mother is to pay the Child’s High School directly within 7 days of notifying the Father, utilising email facilities of the High School cost.
Submissions
The Mother opposes all of the Orders, except for proposed Order 49.2, involving the parties sharing the child’s educational expenses equally. She consents to that order, commenting that she has been responsible for all of the costs of the child’s education up to date.
The Father told the Court that whilst he and his current wife had moved to Adelaide to live, he had returned to Sydney temporarily because the employment situation was so bad that he was unable to retain employment or obtain fresh employment. Consequently, he has moved back to Sydney temporarily to obtain employment, which he has been successful in doing. As a result, he wishes to spend more time with his son than the one weekend per month currently provided for in the Consent Orders.
The Consent Orders were drawn up in May 2013 to cater for the facts that the child was living with his mother in Sydney and the father was living in Adelaide. Order 4.1 provides, relevantly:
That X shall live with the Father in Adelaide as follows unless otherwise provided herein:
4.1 Monthly basis
4.1.1On the second weekend of every month excluding the time periods set out Order 4.2 to 4.6 commencing from Friday no earlier than 6.00 pm flight from Sydney returning on Sunday by no later than 7.30 pm.
As all of the Father’s time with the child was to be spent in Adelaide, the Orders provided that changeover between parents should be at the Sydney and Adelaide Airports:
7. That the parties or their respective nominees shall deliver X to and collect X from the Sydney and Adelaide Airports where X will be registered as an “Unaccompanied Minor” where the parties’ time with X commences or ceases.
The Father submitted that the changeover should continue to be at the Sydney Domestic Terminal 2 at the food court that is situated inside the security gates. He said that his reasons for this arrangement were that:
a)He has to travel by train from his home at (omitted) and it is only a short walk from the Domestic Terminal Railway Station to Terminal 2 itself; and
b)He chose the food court area so that he could provide the child with a meal when he collects him, otherwise it would not be until about 8:00pm before he gets the child home and can give him an evening meal.
The Father seeks that the child should play cricket during the cricket season, which lasts from the end of October through to the end of March. He would like to spend time every Saturday morning with his son while he is playing cricket, including the Saturdays when the child would normally be in his mother’s care.
The Father was critical of the Mother for not complying with the Orders that provided for X to play cricket. Those orders provide:
42.That the Mother will take X to Saturday cricket at the (omitted) Sydney club for the duration of the cricket season commencing at or about September annually, and ending at or about February, and to the best of her ability to be reviewed on an annual basis by the parties.
43.That the Mother shall take X to the mid-week or other training sessions arranged by X’s cricket coach, ensuring that X attends on time, dressed in sport clothing and footwear, and with X’s entire sporting equipment contained in X’s cricket bag.
44.That the Father shall supply the Mother with X’s cricket kit, with the Father notifying the Mother in the Communication book of the list of contents of X’s cricket bag, and the Mother to (sic) will be responsible for replacement of any of X’s cricket items at her cost.
The Father submitted that the child should be enrolled at (omitted) High School to commence school at the beginning of the first school term in 2015. He said that (omitted) High was the closest High School to the Mother’s residence.
The Father was critical of the Mother for having enrolled the child at (omitted) High School without consulting or informing him, contrary to the Orders. He also pointed out that (omitted) High School was some 7.2 kilometres away from the Mother’s residence, considerably further than (omitted) High.
The relevant Order in respect of the child’s attendance at High School is Order 39.2, which provides:
39.2During February 2014 the parties will consult as to a suitable high school for X in 2015.
The Mother did not consult with the Father about enrolling the child in a High School and her decision to enrol him at (omitted) High School was a unilateral one.
The Mother told the Court that she had made about five different offers to the Father for the child to spend an extra weekend a month with him, but had been unable to secure an agreement with him about arrangements. Consequently, she said, she had now changed her mind.
The Mother gave other, more valid reasons why she opposed the Father’s proposal for an extra weekend a month with the Father:
a)She has two other children from another relationship, and ideally the children should be together on weekends and go to their respective fathers on the same weekends, but with the arrangements that she has with her other children’s father the weekends would eventually get out of synchronisation whenever there was an extra weekend in the month;
b)Changeovers at the Airport are problematic, especially where the Father insists that the handover point should be at the food court inside the secure area, as it can be most inconvenient to have to go through the security checkpoint each time, especially on Friday and Sunday evenings, which can be very busy; and
c)The Mother does not have a car so she, too, must travel by public transport, and it is well known that train fares to the Domestic Airport Railway Station are significantly more expensive than fares to other stations on the same line.
The Mother submitted that (omitted) Railway Station would be a far more convenient and significantly less expensive venue for changeover.
The Mother was less than enthusiastic about the Father’s proposed orders for the child to play cricket at (omitted). She queried what would happen upon the Father’s eventual return to Adelaide, whenever that may be. She said she was not receiving any child support at present due to the Father’s unemployment, which had an impact on her ability to afford the necessary equipment and arrangements for the child to play cricket.
The Mother said that she had enrolled X at (omitted) High School because that was in accordance with the child’s wishes. (omitted) is a single sex High School, whilst (omitted) is co-educational.
The Mother agreed with the Father’s proposal that the parties should share the child’s school expenses equally.
The Relevant Law in regard to Parenting Applications
When the Court is considering making parenting orders, whether final orders or interim orders (i.e. orders until further order), 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, it 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 as the paramount consideration;
c)Section 60CC, which sets out the way that the Court determines what is in a child’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, insofar as they are relevant. The matters in sections 60CC, 61DA and 65DAA will be discussed further.
Relevant matters in section 60CC of the Family Law Act
The Full Court of the Family Court in Goode & Goode[2] states that a Court at first instance should 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.[3]
[2] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
[3] (2006) 36 Fam LR 422 at 445 [82]
The primary considerations in subsection 60CC(2) are, first, the benefit to the child of having a meaningful relationship with both parents and, second, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
It has not been argued by either party that the other poses an unacceptable risk of harm to the child. The Father wishes to spend more time with him in order to promote a meaningful relationship with him.
The additional considerations are set out in subsection 60CC(3). They include, at paragraph (a), any views expressed by the child and any factors that the court thinks are relevant to the weight it should give to the child’s views. There is little in the way of evidence of the child’s views, except the Mother’s submission that he expressed a wish to attend (omitted) High School because it is a single sex school.
Each parent has, on the limited evidence before the Court, a positive relationship with the child.
The parents have both taken the opportunity to:
a)participate in making decisions about major long-term issues in relation to the child;
b)spend time with the child; and
c)communicate with the child.
Indeed, the Father complains that the Mother has frustrated his attempts to be more involved in his son’s life.
Each parent has criticised the other for a perceived failure to maintain the child.
The likely effect on the child of the change in circumstances if the Father’s proposals are adopted would seem to me to be positive. X would spend more time with his father on a regular basis, and it might well be argued why that should not be the case, now that the Father is living in Sydney, at least for the next few months.
The Mother raises a concern that the Father’s proposal for extra time might have some effect on his spending time with his half siblings, although that appears to be a relatively minor effect. The child lives with his half siblings and sees them during the week.
The practical difficulty and expense of the child spending time with his father appears to be due, at least in part, to the changeover arrangements which the father appears to be reluctant to abandon. It is hard to see why, if the child is going to spend time with his father on a weekend, he should have to go to the Domestic Airport, go through Security and meet his father or mother in the secure area when he is not going to fly anywhere.
The changeover arrangement was drafted at a time when the Father was living in Adelaide and the proposal was that the child would fly from Sydney to Adelaide and back one weekend a month. Then, it made sense for changeover to be at the airport. Whilst the Father and Mother are both residing in suburbs of Sydney, the arrangement makes no sense whatsoever.
The Father clearly does not concede that the Mother has the capacity to provide adequately for the child’s needs, including emotional and intellectual needs. The Consent Orders were prepared by the Father’s solicitor. The Mother was not legally represented at the time.
It is noteworthy that the Orders are very detailed and prescriptive, being of a type referred to by Judge Brewster (as he now is) in a recent decision of Nash & Reis[4], where his Honour held at [52]:
These orders are really nothing more than the court directing a parent to be a good and responsible parent…They would involve the court making orders micromanaging how each party cares for the child…in my view a court should be minimalist in the orders it makes which, in effect, micromanage how parents bring up their children. Further it would be demeaning for a court established under Chapter III of the Constitution to exercise the judicial power of the Commonwealth. In my opinion, such orders should very rarely, if ever, be made.
[4] [2013] FMCAfam 11
His Honour followed the decision of the Full Court of the Family Court in VR & RR[5], where their Honours held at [30]:
In our view it is not the role of the court to identify and then seek to determine every matter that is in issue between two estranged parents who cannot agree on the way their child is to be raised. The court should only interfere in the way a parent proposes to raise a child to the extent that the welfare of the child requires interference.
[5] [2002] FamCA 320; (2002) 29 Fam LR 39; FLC 93-099
As an example, Orders 42 to 44 of the Consent Orders to which I have previously referred, relating to the child’s participation in cricket, are extraordinarily prescriptive and it is surprising that the Mother consented to them.
Equal shared parental responsibility and s. 61DA of the Act
Order 2 of the Consent Orders provides that the parties are to have equal shared parental responsibility for X. Neither party has submitted that there should be any change to that situation. The Orders sought by the Father are interim orders, as they mainly relate to a temporary change of circumstances that sees him located back in Sydney rather than Adelaide, where he was living when the original orders were made.
Subsection 61DA(3) of the Family Law Act 1975 provides that when the Court is making an interim order, as is the case here, the presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child applies unless the Court considers that it would not be appropriate in the circumstances.
The presumption of equal shared parental responsibility will continue to apply.
Section 65DAA of the Family Law Act 1975
Where there is an order for the parties to have equal shared parental responsibility for a child, the Court is required by s.65DAA(1) to consider whether it is both in the child’s best interests and reasonably practicable for the child to spend equal time with each parent.
Neither parent seeks such an order. I am not persuaded that it would be reasonably practicable, even if it were in the child’s best interests.
However, the Court must also consider whether it is in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent. In my view, it would certainly be in this child’s best interests for him to spend more time with his father whilst his father is living in Sydney. It is unfortunate that this boy’s parents have been unable to agree on something that seems so obvious, however, their levels of mutual trust and communication are both so low that such an arrangement has not been achieved to date.
Orders that are in the child’s best interests
The parties’ submissions to the Court have been marked by mutual recriminations and detailed and largely irrelevant accounts of their failed efforts to negotiate about their son’s welfare. It is regrettable that their proposals are not so much child-focused as reflective of their mutual dislike and distrust.
There is no evidence that shows that the Father is a bad father to his son. He clearly loves him and wants to spend time with him, although his constant nit-picking and controlling behaviour directed towards the Mother has clearly failed to persuade her to negotiate an arrangement whereby he spends more time with his son whilst there is an opportunity to do so.
The Mother is clearly sick of being badgered by the Father, whose apparent inflexible approach towards changeover arrangements has caused the Mother to dig her heels in and refuse to agree to the Father’s proposal. Whilst this may be understandable, it is hardly child-focused, and I asked the Mother during the hearing whether she considered her refusal, admittedly after some five offers had been rejected, was in the child’s best interests.
The fact that X’s weekends with his father may not always coincide with time that his half siblings spend with their father is of little concern, in my view, as he apparently spends time with them at other times.
Where the Mother’s objections are more valid, in my view, are to the changeover arrangements at the airport, involving the parties to go in through security and out again, which is nonsensical when no one is going to fly anywhere.
It is common knowledge in Sydney (Evidence Act 1995 (Cth), s.144) that Friday evenings and Sunday evenings are busy travel times, which can lead to lengthy queues and subsequent delays in going through security. It is also common knowledge that the two railway stations at Sydney Airport, Domestic and International, attract significantly higher train fares than other stations on the line, due to a commercial arrangement between the NSW Government and the companies who built and operate the stations.
As the Mother submits, it is far cheaper for these parents, both of whom have to travel by train, to meet at a railway station other than the Domestic Airport Station. There is no need to meet at the Airport at all when no party will be flying anywhere. The Father’s explanation that the parties need to go through security at Terminal 2 to get to the food court in order to provide his child with an evening meal is unconvincing.
It is in this child’s best interests to spend two weekends a month with his father whilst his father is living in Sydney. The changeover point can be the (omitted) Railway Station, as the Mother suggests, which is more convenient and less expensive than travelling to an airline terminal.
As for the cricket, the Father clearly wants his son to play cricket, which can hardly be criticised. The Mother appears not to have a great interest in this activity. If X is spending two weekends a month with his father, or, in fact, alternate weekends with him, which is a very common arrangement, there is no reason why he cannot play cricket on those weekends. The Father can make the arrangements and meet the necessary costs.
That leaves the question of the child’s school. There is little in the way of evidence, except that the Father submits that (omitted) High is 7.2 kilometres away from the Mother’s home whilst (omitted) is much closer. The Mother says that (omitted) is the child’s choice.
It is clear that no particular weight should be placed on the wishes of the parent with whom the child lived and the best interests of the child remain the paramount consideration (Re G: Children’s Schooling[6]). It appears that the school has already been chosen, albeit without consulting the father, and the choice of school is in accordance with the child’s wishes.
[6] [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025
I am not prepared to depart from the choice of (omitted) High School as a High School for the child to commence in 2015. The parents appear to have consented to the order proposed by the Father that they should share the child’s educational expenses equally.
It should be borne in mind that the orders proposed by the Father are essentially interim orders and the situation may well change if and when he returns to reside in Adelaide. Consequently, the Orders to the contrary of the Orders to be made until further order will be suspended.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 5 November 2014
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