Firbank and Firbank
[2011] FMCAfam 118
•3 February 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FIRBANK & FIRBANK | [2011] FMCAfam 118 |
| FAMILY LAW – Parenting – interim – children aged 2 years and 6 months respectively – children’s time with father to increase incrementally according to age. |
| Family Law Act 1975, ss.11F, 60CA, 60CC, 64B, 65DAA |
| Goode & Goode (2006) FLC 93-286 |
| Applicant: | MR FIRBANK |
| Respondent: | MS FIRBANK |
| File Number: | SYC 4336 of 2010 |
| Judgment of: | Monahan FM |
| Hearing date: | 28 January 2011 |
| Date of Last Submission: | 3 February 2011 |
| Delivered at: | Sydney |
| Delivered on: | 3 February 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kearney |
| Solicitors for the Applicant: | Barkus Doolan Kelly |
| Counsel for the Respondent: | Ms Boyle |
| Solicitors for the Respondent: | Biddulph & Salenger |
ORDERS
All extant applications be adjourned to this Court on 18 March 2011 at 10:00am for mention (“the mention hearing”).
That Orders 2 and 3 made by consent and on a without admissions basis on 7 September 2010 be discharged.
That pending further Order and in relation to the child, [X], born [in] 2009 (“[X]”), that [X] spend time with the Applicant as agreed, or failing agreement as follows:
(3.1)In a fortnightly cycle commencing immediately (and noting that the following cycle has commenced and the parties are currently in Week 2 of the cycle):
(a) In Week 1:
(i) From 9.30am until 3.30pm on Tuesdays;
(ii) From 9.00am until 12.00pm on Thursdays;
(iii) From 9.00am until 12.00pm on Saturdays.
(b) In Week 2:
(i) From 9.30am until 3.30pm on Tuesdays;
(ii) From 9.00am until 12.00pm on Thursdays;
(iii) From 9.00am until 12.00pm on Sundays.
(3.2)From 2 May until 26 June in a fortnightly cycle:
(a) In Week 1:
(i)From 9.30am until 3.30pm on Tuesdays;
(ii)From 9.00am until 12.00pm on Thursdays;
(iii)From 9.00am until 3.30pm on Saturdays.
(b) In Week 2:
(i) From 9.30am until 3.30pm on Tuesdays;
(ii) From 9.00am until 12.00pm on Thursdays;
(iii) From 9.00am until 3.30pm on Sundays.
(3.3)From 27 June until 21 August 2011 in a fortnightly cycle:
(a) In Week 1:
(i) From 9.30am until 3.30pm on Tuesdays;
(ii) From 9.30am until 3.30pm on Thursdays;
(iii) From 9.30am until 3.30pm on Saturdays.
(b) In Week 2:
(i) From 9.30am until 3.30pm on Tuesdays;
(ii) From 9.30am until 3.30pm on Thursdays;
(iii) From 9.30am until 3.30pm on Sundays.
(3.4)From 22 August 2011 and pending further Orders and in a fortnightly cycle:
(a) In Week 1:
(i) From 9.30am until 3.30pm on Tuesday;
(ii) From 9.30am on Saturday until 3.30pm on Sunday.
(b) In Week 2:
(i) From 9.30am on Tuesday until 3.30pm on Wednesday;
(ii) From 9.30am on Thursday until 3.30pm on Friday.
That pending further Order and in relation to the child [Y], born [in] 2010 (“[Y]”), that she spend time with the Applicant as follows:
(4.1)From 3 February 2010 until 7 February 2011, as agreed or, failing agreement, 30 minutes with the Applicant either before or after each period of time he spends with [X];
(4.2)From 8 February 2011 until 26 June 2011, as agreed or, failing agreement, one hour with the Applicant either before or after each period of time he spends with [X];
(4.3)From 27 June until 21 August 2011, as agreed or, failing agreement, from 7.30am until 9.30am on each period of time the Applicant spends with [X];
(4.4)From 22 August 2011, as agreed or, failing agreement, in a fortnightly cycle:
(a) In Week 1:
(i) From 9.30am until 3.30pm on Tuesday;
(ii) From 7.30am until 9.30am on Thursday;
(iii) From 7.30am until 9.30am on Saturday;
(b) In Week 2:
(i) From 9.30am until 3.30pm on Tuesday;
(ii) From 7.30am until 9.30am on Thursday.
The applicant and the respondent attend and complete, as soon as practicable, a Parenting Apart post separation parenting program ("the Program") at an organisation as agreed by the parties or, in default of agreement within seven (7) days, an organisation nominated by Relationships Australia at Sydney (“the organisation”) and:
(a)do everything reasonably necessary to enrol in, undertake and successfully complete the Program;
(b)pay all costs associated with their participation in the Program;
(c)attend and complete, as soon as practicable, any further course or program recommended by the organisation; and
(d)provide a copy of the certificate of completion of the Program(s) to the other party or their solicitors.
AND THE COURT NOTES THAT:
(A)The purpose of the mention hearing is to consider whether the parties remain in dispute as to both parenting and property matters, whether a family report should be prepared and whether the matter should be listed for final hearing.
(B)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (“the Act”), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Firbank & Firbank is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4336 of 2010
| MR FIRBANK |
Applicant
And
| MS FIRBANK |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by MR FIRBANK (“the Father”) against
MS FIRBANK(“the Mother”) filed 9 July 2010 regarding various property and parenting matters (“the Application”). There are two children of the relationship, namely, [X] (“[X]”), born [in] 2009, and [Y], born [in] 2010 (“[Y]”), (collectively “the children”). The Mother opposes the property and parenting orders sought in the Application. The Mother filed her response on 21 October 2010 and later filed an amended response on 23 December 2010 seeking property orders as well as parenting orders.
In relation to parenting matters, the Father is seeking final orders as follows:
·equal shared parental responsibility;
·the children live with and spend time with the Father for defined periods; and
·the children live with the Mother at all other times.
The Father is also seeking interim orders for the children to spend more time with him than is currently occurring, with such time to increase incrementally.
The Father relies on his affidavit sworn on 7 July 2010 and filed on 9 July 2010 and his affidavit sworn on 25 January 2011 and on filed 27 January 2011.
In relation to parenting matters, the Mother is seeking final orders as follows:
·equal shared parental responsibility; and
·the children spend defined times with the Father with the durations of the time to increase as the children develop.
The Mother relies on her affidavit sworn 14 October 2010 and filed 21 October 2010. The other affidavits filed by the Mother appear to relate to the property matters only.
An interim hearing was held on 28 January 2011 with respect to interim parenting orders (“the interim hearing”). The essence of the dispute between the parties at the interim hearing was that the times for the Father to spend with the children as proposed by the Mother are significantly less than those proposed by the Father. At the interim hearing, the Father was legally represented by Mr Kearney of counsel and the Mother by Ms Boyle of counsel.
Background
The Father was born in 1974 and is currently aged 36 years. The Mother was born in 1971 and is currently aged 39 years. The parties commenced cohabitation in mid-2008 and married [in] 2009. They separated under the one roof at the Father’s property in [suburb omitted] on 21 October 2009 and the Mother left that residence on 15 November 2009.
The Father commenced these proceedings by filing the Application when [X] was nearly 15 months old and [Y], just three weeks old. The Father also filed an application for divorce on 27 October 2010, which resulted in Registrar Cater-Smith making a divorce order on 9 December 2010.
On 7 September 2010, the Application came before the Court for the first time. An order was made under s.11F of the Family Law Act 1975 (“the Act”) for an urgent child dispute conference that same day with Ms M, family consultant, from which a memorandum was produced as is normal practice (“the September CDC Memorandum”).
After returning from the child dispute conference, the Father pressed for an urgent interim hearing listing. This was refused given the very young ages of the children.
The parties entered into interim consent orders on 7 September 2010 (“the interim consent minute”) to the following effect:
·that the parties have equal shared parental responsibility for [X] and [Y];
·[X] spend time with the Father each Tuesday, Thursday and alternating Saturday/Sunday, from 9:00am until 12 noon with such time to commence and conclude by the Father collecting [X] from, and returning [X] to, the home of the maternal grandparents where the Mother resides; and
·[Y] spend time with the Father for 30 minutes immediately prior to, or immediately following upon, the time [X] spends with the Father at times as agreed or, failing agreement, from 12 noon to 12:30pm on each such occasion with such time to commence and conclude by the Father collecting [Y] from, and returning [Y] to, the home of the maternal grandparents.
Paragraphs 10 to 14 of the Application were also inserted into the interim consent minute and state:
“10. Each party notify the other, as soon as possible and in any event within 4 hours, of any serious injury or illness suffered by a child whilst with that party.
11. Each parent notify the other of the address and telephone number/s of the place/s where the children will be staying during holidays spent away from their residence, not later than 7 days prior to the commencement of any holiday period.
12. That the wife forthwith authorise any day care centre, extra curricular activity convenor, childcare centre, or pre-school each child may attend to provide to the husband photocopies of reports, newsletters and announcements of centre/school activities, or otherwise pertaining to the education of a child or if none have been made available in writing, then the wife shall provide written particulars, which includes by email, of such reports and/or activities to the husband within 2 days of such documents or particulars being received by the wife from the centre/school, and the wife shall authorise staff members at any childcare centre, pre-school and school a child may attend, to discuss each child’s progress with the husband.
13. The wife provide to the husband the names, addresses and telephone numbers of all medical professionals who may treat a child and authorise each of them in writing to provide copies of any test results, letters of referrals, reports, and letters received from other medical professionals and authorise them to discuss any aspect of a child’s health with the husband.
14. That the parties will facilitate the exchange of information in relation to each child by utilising a communication book and each party will ensure that the communication book is delivered to the other party at the conclusion of each period a child lives with spends time with them.”
The interim consent minute was entered into on a “without admissions” basis, particularly from the point of view of the Father. It was clear that the Father was seeking to spend more time with the children, and that remained the case at the interim hearing.
As well as making Orders in the terms of the interim consent minute Orders to the following effect were also made on 7 September 2010:
·the matter be adjourned to interim hearing on 28 January 2011 with respect to parenting matters, as pressed by the Father, being a date approximately four months after the first return date for the Application and the first available sitting for 2011;
·the matter be adjourned to mention hearing on 29 November 2010 with respect to property matters; and
·providing that in the event that the interim consent minute did not make provision for the Father to spend time with the children on Christmas Day, then the same spend time provisions to apply.
On 29 November 2010 the parties again came before the Court and orders were made for the parties to attend a further child dispute conference. An order was also made for the parties to attend a conciliation conference on 18 February 2011 with respect to property matters. On 14 January 2011 the parties attended a further child dispute conference with Ms M from which a memorandum was produced (“the January CDC Memorandum”).
Child Dispute Conferences
The parties have now attended two child dispute conferences with Ms M. In the September CDC Memorandum, Ms M states:
“Summary of agreement(s) reached:
The father will spend time with the children on three occasions per week
Father will spend time with [Y] for half an hour at the beginning or end of the time that he spends with [X], which time will be additional to the time that he spends with [X]
The time that [X] spends with his father will be increased to three hours on each occasion, which will continue until December 2010
It is agreed that, in January 2011, [X]’s time with his father will increase to 6 hours on at least one of the visits (the father wants the increase to included two of the visits)
The parents are agreed that the time that [Y] spends with her father will occur at either a park or going for a walk or, if the weather is bad, at the maternal grandmother’s home
The parents are considering the Family Consultant’s suggestion that the time be increased to 6 hours for one of the visits for a period of 6 weeks and thereafter to extend to two of them.
Issues remaining in dispute:
How to progress the time that [X] spends with his father and when it should include overnight time
How to progress the time that [Y] spends with her father (not reached in discussion)
What the parenting arrangements should be on a final orders basis (not reached in discussion)
Issues impeding resolution:
Ages of the children
The very different views of each parent as to what is best for [X] (at this point in time).”
The September CDC Memorandum also indicates that Ms M raised the offer of a further child dispute conference in January 2011. As stated above, this occurred on 14 January 2011.
In the January CDC Memorandum Ms M states:
“Summary of agreement(s) reached:
[X] to start spending 6 hours with his father on Tuesdays, as of 25 January 2011
That the parenting relationship needs to improve
Issues remaining in dispute
Interim arrangements for [Y] – the mother wants to maintain the current arrangement until [Y] is older (14 months); the father wants to move to her spending one hour with him before or after the time he spends with [X] and to increase this to 2 hours from when she turns 9 months
How to progress the time for [X] – both in the interim and final orders
Father wants [X] to have a month of spending 6 hours on one of the visits, then moving to 6 hours on 2 of the visits for a month and thereafter to his spending 6 hours on all three of his visits
The father also wants to start overnight time from between when [X] turns 2 ½ yrs and 3yrs
The mother wants [X]’s time with his father increased at a more conservative rate and overnight time to start when [X] turns 4yrs
Issues impeding resolution:
The parental relationship is an issue.”
Ms M recommended that the parties attend a parenting after separation program or similar to assist them in achieving the type of parenting relationship they would prefer to have. The parties have agreed to this course of action.
Issues
The issue for determination at the interim hearing was the frequency, time and circumstances under which the children, bearing in mind their young years, should spend time with the Father.
Proposals
Prior to the interim hearing, the Father provided a revised proposal in his case outline document. At the commencement of the interim hearing the Mother provided a handwritten revised proposal to the Court.
The proposals indicate that the parties agree on orders for equal shared parental responsibility and to extend [X]’s time with the Father on Tuesdays from 9:00am to 12 noon, to 9:00am to 3:00pm. This is an increase of time of [X] with the Father from three to six hours. [Y] spends 30 minutes before, or after, these times that [X] spends with his Father. As already indicated, the parties also agree that they should undertake a post-separation parenting course.
The revised proposals also indicate the areas of disagreement and are summarised for each party below.
The Father’s proposal
In respect of [X], the Father proposes that:
“2. That pending further order and in relation to the child, [X], that he spend time with the father as follows:
2.1 Until 28 February 2011 in a fortnightly cycle:
a) In week 1:
i)From 9.00am until 3.00pm on Tuesdays.
ii)From 9.00 am until midday on Thursdays.
iii)From 9.00 am until midday on Saturdays.
b) In week 2:
i)From 9.00 am until 3 pm on Tuesdays.
ii)From 9.00 am until midday on Thursdays.
iii)From 9.00 am until midday on Sundays.
2.2 From 1 March until 30 April 2011, in a fortnightly cycle:
a) In week 1:
i) From 9.00 am until 3.00 pm Tuesdays.
ii) From 9.00 am until midday Thursdays.
iii) From 9.00 am until 3.00 pm on Saturdays.
b) In week 2:
i)From 9.00 am until 3.00 pm on Tuesdays.
ii)From 9.00 am until midday on Thursdays.
iii)From 9.00 am until 3.00 pm on Sundays.
2.3 From 1 May until 30 June 2011 in a fortnightly cycle:
a) In week 1:
i) From 9.00 am until 3.00pm Tuesdays.
ii) From 9.00 am until 3.00 pm on Thursdays.
iii) From 9.00 am until 3.00 pm on Saturdays.
b) In week 2:
iv) From 9.00 am until 3.00pm on Tuesdays.
v) From 9.00 am until 3.00 pm on Thursdays.
vi) From 9.00 am until 3.00 pm on Sundays.
2.4From 1 July 2011 and pending further orders in a fortnightly cycle:
a) In week 1:
i) From 9.00 am until 3.00 pm on Tuesday.
ii) From 9.00 am on Saturday until 5.00pm on Sunday.
b) In week 2:
i) From 9.00 am on Tuesday until 6.00 pm on Wednesday.
ii) From 10.00am on Thursday until 6.00pm on Friday.”
An issue arose as to whether the commencement times are at 9:00am, as sought by the Father, or 9:30am, as sought by the Mother. The Father indicated whilst his preference is 9:00am he was not necessarily saying 9:30am could not also work.
In respect of [Y], the Father proposes that:
“3. Pending further order in relation to the child [Y], that she spend time with the father as follows:
3.1 Until [Y] turns nine months of age on [date omitted] 2011, one hour with the father either before or after each period of time he spends with [X].
3.2 From 20 March until 30 June 2011, two hours with the father either before or after each period of time that the father spends with [X] (and that if the father wishes to spend the time with [Y] in the mornings in any week it will be from 8 am until 10 am, and his time with [X] will then commence from 10 am rather than 9 am and will finish with [X] at 4 pm rather than 3 pm).
3.3 From 1 July 2011:
3.3.1 From 9 am to 3 pm each Tuesday.
3.3.2 From 8 am to 10 am each Thursday.”
The Father also seeks orders for specific times in respect of the children for Father’s Day, the children’s birthdays and the parties’ birthdays.
The Mother’s proposal
In respect of [X], the Mother proposes:
“2. That [X] spends time with the father, as follows:
2.1On Tuesdays, 9.30am to 3.00pm; on Thursdays from 9.00am to 12.00pm; alternating Saturdays and Sundays commencing Sunday, 30 January 2011 from 9.00 am to 12 noon.
2.2 From Saturday, 20 August 2011, on Tuesdays from 9.30am to 3.30pm; on Thursdays from 9.00am to 12.00pm; alternating Saturdays and Sundays commencing from 9.30am to 3.30pm.”
In respect of [Y], the Mother proposes:
“3. That [Y] spend time with the father:
3.1 Sunday, 30 January 2011, Tuesday, 1 February 2011, Thursday, 3 February 2011, Saturday, 5 February 2011 from 8.30 am to 9 am.
3.2From Tuesday, 8 February, on Tuesdays, Thursdays, and alternating Saturdays and Sundays in same pattern as 3.1 until Thursday, 16 June 2011 from 8.30 am to 9.30 am.
3.3 From Sunday, 19 June 2011, Tuesdays, Thursdays and alternating Saturdays and Sundays in the same pattern as 3.1, from 7.30 am to 9.30 am.”
The Mother also proposes that additional time for [X] and [Y] with the Father occur on 8 April 2011 from 8:30am to 9:30am (i.e. an increase to one hour) and also on Father’s Day, 4 September 2011, from 7:30am to 9:30am (i.e. an increase to two hours).
It is clear that the Father is seeking an accelerated progression of time with the result that by 1 July 2011 [X] would spend three overnight periods with the Father over a fortnightly cycle and [Y] would spend six hours each Tuesday and two hours each Thursday with the Father.
The Mother’s proposal would see the current arrangements continuing for [X] until 20 August 2011 before there was an increase in the time spent with the Father. From 20 August 2011, [X]’s current time with the Father would increase on each alternate Saturday or Sunday to six hours, that is from 9:30am to 3:30pm. On each occasion thereafter the Mother seeks to have [X]’s time with the Father commence at 9:30am. This would facilitate the increase from one to two hours that the Father would spend with [Y] prior to the commencement of his time with [X]. The Mother does not propose for there to be any overnight time which would, of course, be a matter for the final hearing. It is clear, however, that the Mother seeks for overnight time to commence from the age of four years.
As to [Y]’s time, as stated there would be an increase from 8 February 2011 to one hour before [X]’s times with the Father this would increase to two hours on 4 September 2011.
Parties’ submissions
Mr Kearney, for the Father, provided the Court with oral submissions and a written case outline document. Ms Boyle, for the Mother, also provided the Court with oral submissions and a minute of orders sought.
Mr Kearney commenced by observing that there was no complaint or criticism made by the Mother in respect of the Father’s capacity to spend time with the children and ability to care for them during that time. The Mother also conceded the following:
a)that there was no assertion or allegation that the children were at any risk whilst in the Father’s care; and
b)there was no evidence before the Court that the children were not coping well with the time they were spending with the Father.
It was confirmed that the Father was seeking to spend substantial and significant time with the children and, consequently, that the Court needed to consider s.65DAA of the Act.
Mr Kearney submitted that the progression proposed by the Father was “sensitive to their [the children’s] ages” and was a “steady, not overly hasty progression”. Mr Kearney submitted that the Mother’s proposal with respect to no overnight time with [X] until he turned four years of age was “arbitrary” and that the Mother’s attitude was “less than fully supportive of the relationship” between the children and the Father.
Ms Boyle confirmed that [Y] was still being breastfed and that the Mother intends to wean [Y] off breast milk around the age of 12 months as was done with [X]. Ms Boyle submitted that there is a need to put the issue of the children’s time with the Father into context. The parties separated when [X] was an infant and did not live together during [X]’s early months. In relation to [Y], the parties separated long before her birth and have not lived together since. The Mother’s proposal factors in the sleeping and eating patterns of the children, particularly [Y] who is currently sleeping between 9:30am and 10:30am and from 1:00pm to 3:00pm everyday. [X] sleeps between 12:30pm and 3:00pm each afternoon.
As to any immediate increases in time to be spent, Ms Boyle asked the Court to note that as of the interim hearing, [X] had only spent one six-hour continuous period with the Father. Ms Boyle submitted that any accelerated increase was “crystal ball gazing” and that any move to overnight time for [X] with the Father needed to be assessed progressively before any increases occurred.
Ms Boyle submitted that the Mother had concerns that any time spent overnight by [X] with the Father would not be with [Y]. Ms Boyle pointed to the January CDC Memorandum which states “the parenting relationship of the parties needs to improve”. Ms Boyle also referred to the Mother’s evidence that she is currently on a waiting list for public housing and asked the Court to note that a new child support agreement had issued and had dramatically increased the Father’s contribution from some $40.00 per week to $400.00 per week.
In reply, Mr Kearney confirmed that the Father is still a full-time student and accepted that the child support agency has recently issued a new assessment. Mr Kearney asked the Court to accept the flaw in the Mother’s proposal, in that it provides for a modest build up in time to be spent, then it stops. Mr Kearney said that in contrast the Father’s proposal is sensitive to the needs of the children as well as the circumstances of the Mother by factoring in the Mother’s preference for morning changeovers. Mr Kearney refuted any suggestion that the Father acted insensitively by commencing these proceedings given the Mother’s pregnancy and asked the Court to note that despite their disagreement, the Father had refrained from commencing these proceedings until after [Y]’s birth.
Law and discussion
All parenting proceedings are governed by the provisions of Part VI of the Act. Parenting orders are defined in s.64B, and deal with issues such as where a child is to live, the time that a child is to spend with another person, or otherwise allocate parental responsibility in respect of a child.
Section 60CA of the Act provides:
“In deciding whether to make a particular parenting order in relation to the child the Court must regard the best interests of the child as the paramount consideration.”
Sections 60CA to 60CC of the Act deal with how the Court determines “the best interests of the child”. Of course, most relevant to the interim hearing would be the primary considerations found in s.60CC(2) and the additional considerations, where relevant, found in s.60CC(3). These will be explored further shortly.
Being an interim hearing, the Court is guided by the decision of the Full Court in Goode & Goode (2006) FLC 93-286 (“Goode”). At paragraph 81 of Goode the Full Court stated:
“In making interim decisions, the Court will still often be faced with conflicting facts, little helpful advice, and disputes between parents, as to what constitutes the best interests of the child.”
Clearly this matter is such a case. More specifically, this case highlights that the Court cannot fully determine issues of credit at an interim hearing as the evidence being presented by the parties has not been tested by cross-examination. That said, the Full Court in Goode made it clear that “the legislative pathway must be followed”. In other words, the relevant provisions that the Act post the 2006 shared parenting amendments must be followed.
There is no issue of equal shared parental responsibility to be determined at the interim hearing. The dispute is simply limited to the children’s time with the Father and under what circumstances that time is to be spent. That said, it does, as submitted by Mr Kearney, trigger an examination of s.65DAA of the Act.
If a parenting order provides, or is to provide, for a child’s parents to have equal shared parental responsibility then the Court is required under s.65DAA to consider whether a child’s best interests would be served by making an order that they spend equal time, or substantial and significant time in lieu, with each of their parents. Either outcome requires the Court to consider whether a child spending equal time, or substantial and significant time, with each of the parents would be in “the best interests of a child” and be “reasonably practicable” in the circumstances.
It is worth noting that s.65DAA(3) of the Act stipulates that a child will only be taken to spend “substantial and significant time” with a parent if:
“(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.”
As to reasonable practicality, under s.65DAA(5) of the Act, issues such as how far the parents live apart and the like are also considered, though this is not an issue in this matter.
The Full Court in Goode requires this Court to consider the competing proposals, identify the issues in dispute, and identify any agreed or uncontested relevant facts. These have been articulated above.
Primary Considerations: section 60CC(2)
Section 60CC(2)(a) requires the Court to consider the benefit of a child having a meaningful relationship with both parents. “Meaningful” does not necessarily mean “equal”, however, it clearly signifies that both parents should be involved with their child and clearly signifies an expectation of time to be spent. That said, the right of a child to spend time with each parent and extended family is the right of a child’s. Consequently, the Court will in all likelihood need to give some considerable weight to this primary consideration at the final hearing, should such be needed.
The Court is also required under s.60CC(2)(b) to consider the need to protect a child from physical or psychological harm and being subjected to or exposed to abuse, neglect or family violence. There is no doubt it would be in the children’s best interests to develop a meaningful relationship not just with the Mother, but also with the Father, however, that needs to be balanced in respect of protecting a the children as this from physical or psychological harm. The issue in this matter is not one of physical or psychological harm in a family violence sense. However there is an issue about the periods proposed by the parties and whether those periods would be detrimental to the children’s psychological or physical health. This needs to be balanced with the children’s right to spend meaningful time with the other parent. There is no evidence from the Mother that the children would be in any significant danger in spending any time with the Father. As a consequence of this it comes down to the children’s developmental needs.
Additional considerations: section 60CC(3)
Firstly, “the views of the children”, given their ages, would be something that would be very difficult for the Court to determine. With respect to issues such as “the nature of the relationship of the children with each parent”, and “the willingness and ability of each parent to facilitate a close and continuing relationship”, these are all issues that are disputed between the parties and will be considered in full at a final hearing, should such be needed. The family report will also be crucial in the Court reaching a decision which will finally determine the matter for the parties.
There are also issues at this stage about “the willingness and ability of each parent to facilitate and encourage a close and continuing relationship”, “the questions raised about capacity to provide for the children’s needs”, and “the extent that they have a history of providing for such or fulfilling their responsibilities as parents”. Again, all of those are issues that will tested and determined at a final hearing.
The Court also has to consider “the likely effect of any changes in the children’s circumstances” and that is clearly a live issue in this matter. The Court agrees with the parties that there needs to be a modest increase in the time that the Father spends with the children, and also agrees that that increase should be gradual. The Court also has concerns that the progression proposed by the Father is a little ambitious but, that said, the Court also has concerns that the progression proposed by the Mother is overly cautious.
As to “any other fact or circumstance”, the fact that there has been no history of overnight time spent between [X] and the Father since separation and without the Mother being present, does not mean that no overnight time should be spent. That said, such transition to overnight time needs to factor in [X]’s needs.
Conclusion
Having considered the respective applications and submissions in light of the available evidence and the relevant statutory provisions, the Court is satisfied there needs to be a gradual increase in the time spent by the children with the Father pending a final hearing, should such be needed.
The Court is satisfied that [X]’s best interests would be served by an incremental build-up of time that would result in [X] spending overnight time with the Father. The Father proposes that this overnight time commence on the weekend of 1 July 2011. That is when [X] is approximately aged two years and four months. The January CDC Memorandum stated the Father’s desire that overnight time start “…from between when [X] turns 2½ yrs and 3yrs.”
The Court has formed the view that 1 July 2011 is a little too early. The weekend commencing around [X]’s two and a half year birthday would be more appropriate. Consequently, a build-up from now until late August, early September 2011.The Court has noted the Mother’s views that the times should, where possible, build into the eating and sleeping patterns of the children. That is sensible. Consequently, the commencement times would start at 9:30am for [X].
The current time should increase from early May, for approximately two months and again, from late June for approximately two months. The Court encourages the parties to align the cycle that will be set out in the Orders in such a way so that [X] spends the weekend of Father’s Day with the Father noting Father’s Day occurs on Sunday, 4 September for 2011.
Whilst the Mother was not pressing for an interim order in respect of Mother’s Day, I similarly encourage the parties to align the weekends accordingly to enable the children to spend time with the Mother on Mother’s Day.
The Court does not propose to make an interim order, unless by consent, as to other special days such as children’s birthdays. I note the Mother’s submission that the current progression would inevitably lead [X] to spending time with his Father on his birthday. The Court has not done the calculations. It is unclear whether the current progression would result in [Y] spending time with the Father on that day. That said, there is merit, where possible, for the children to spend part of their birthdays with each of the parents, if that can be accommodated. Given the very young ages of the children, I am less concerned about the children spending time with both of their parents on each of their parent’s birthdays provided there is a regular regime of time so that the particular parent’s birthday can be celebrated in the week leading up to or following their birthday.
The Court does not propose making other interim orders regarding Christmas and such, unless by the consent of the parties which is strongly encouraged. In the event that such arrangement cannot be agreed upon by the parties then the Court will make appropriate orders.
As to [Y]’s time with the Father, there is agreement between the parties that such time should coincide with the commencement or end of [X]’s time with the Father. There is also agreement that by the time the two hour periods commence, [Y]’s time with the Father should occur at the commencement of each period of time spent with [X]. There is also agreement that [Y]’s time extend to one hour, commencing next week, which appears to be sensible. The Father seeks to extend [Y]’s time to two hours from March 2011. The Mother proposes June 2011 to coincide with [Y]’s first birthday and the commencement of her proposed weaning [Y] off breastfeeding. Given the circumstances, such caution seems appropriate. Fixing the two hour period to the mornings, as proposed by the Mother, is also appropriate. That said, leaving the time to be spend set at two hours from June 2011 until further order, is problematic.
There should be a build-up to the six hours sought by the Father in the months that follow [Y]’s first birthday. The Court appreciates the logistical problems for the Father that this would cause, given that he resides about 30 minutes by car from the Mother’s current residence with her parents. The unnecessary “taxiing” of children to and from the Mother’s current residence is of some concern to the Court. Of course, one way around this would be to reduce [X]’s time with his Father, however, that again creates additional problems for [X].
Consequently, the Court has formed the view that the children’s best interests would be served by there being a further increase in [Y]’s time with the Father from the week commencing 22 August 2011, from 9:30am to 3:30pm each Tuesday.
Orders will now be given to reflect this decision and the progression of time to be spent by the children with the Father along with orders to reflect management of this case. Clearly such orders will replace paragraphs two and three of the Orders made by consent without admissions on 7 September 2010.
The right to settle the reasons for this decision is reserved.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 1 March 2011
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