Fitzroy and Oliversen

[2020] FamCA 198

FAMILY COURT OF AUSTRALIA

FITZROY & OLIVERSEN [2020] FamCA 198

FAMILY LAW – Children – Interim orders – where the Father seeks overnight time with the children – equal shared parental responsibility – children to live with Mother – children to spend time with the Father

Family Law Act 1975 (Cth) s 66C

APPLICANT: Mr Fitzroy

RESPONDENT: Ms Oliversen

FILE NUMBER: CAC 833 of 2018

DATE DELIVERED: 25 March 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 25 March 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms M Davis

SOLICITOR FOR THE APPLICANT: Goldbrook Family Law

COUNSEL FOR THE RESPONDENT: Mr J Haddock

SOLICITOR FOR THE RESPONDENT: Claire Naidu & Co

Orders

1. All previous orders in this matter are discharged.

2. That the parties have equal shared parental responsibility for the children namely Y, born … 2015, and X born, … 2016 (the children).

3. The children shall live with the Mother, and spend time with the Father as follows:

   (a)Every alternate weekend from 9:00am Saturday to 6:00pm Sunday;

   (b)From after school/childcare or 3pm on Wednesday to the commencement of school/childcare or 9.00am on Thursday each week; and

   (i)In the event that school/childcare is closed due to COVID-19 government restrictions, the children spend time with the Father from 9:00am Wednesday to 3:00pm Thursday; and

   (c)At other times as agreed between the parties.

4. Changeover for the purpose of Order 3 occur at the Mother's work address or the children's childcare/school.

5. The children spend time with the Father from 10am to 6pm on Father's Day if not already in the care of the Father.

6. The Children spend time with the Mother from 10am to 6pm on Mother's Day if not already in the care of the Mother.

7. Unless otherwise agreed in writing, the Father's time with the children shall be suspended during school holiday time until the middle Saturday of the holiday period.

8. The parties are prohibited from travelling overseas while the Commonwealth Government of Australia travel and entry restrictions in relation to COVID-19 require a period of self-isolation following international travel.

9. The parties are prohibited from allowing persons who arrive from overseas to spend a period of self-isolation at their residence with the children while the Commonwealth Government of Australia travel and entry restrictions in relation to COVID-19 apply.

10. That the children be permitted to leave the Commonwealth of Australia to travel with the Mother during her allocated times as per the Orders, or as agreed between the parties, as follows:

    (a)That the Mother is to advise the Father of the travel dates and provide the Father with a copy of the air tickets, flight itinerary, accommodation details and telephone numbers four (4) weeks prior to departure.

    (b)The Father shall provide the child's passport in his control to the Mother within 48 hours of receiving the Mother’s notification to travel.

    (c)That the Father communicate with the children while overseas two (2) times per week with the Father causing a telephone call to be made to the Mother at times agreed between the parties.

11. In the event that any child becomes seriously ill or admitted to hospital, the party who has care of the children is to notify the other party as soon as practicable.

12. The parties are to keep the other informed of all medical, dental and healthcare appointments that the children attend and medication that the children are prescribed and provide medication for the children during times they are in each other’s care.

13. The parties are to provide the school with all the authority and consent necessary to ensure that the other party receives copies of all school reports, sporting events, parent/teacher events and special events at the children's school that they attend.

14. Each party is at liberty to attend any extra-curricular activities involving the children.

15. Both parties shall attend all appointments and do all things necessary in relation to Y's anxiety and the Mother will keep the Father informed in relation to all appointments (prior to the appointment taking place).

16. That each parent is restrained from denigrating or criticising the other parent, or members of the other parent’s family or household in the presence or hearing of the child; and shall not allow any third party to do so.

17. The matter is otherwise transferred to the Registrar's list pending further application or the listing of the matter for the making of trial directions.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fitzroy & Oliversen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).\\

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 833 of 2018

Mr Fitzroy

Applicant

And

Ms Oliversen

Respondent

REASONS FOR JUDGMENT

1. These proceedings occur in a context where there was recently listed for final hearing in the Federal Circuit Court, the determination of the dispute between the parties regarding their two children, Y who is aged 5, and X who is aged 3.  At about the time of the final hearing, that matter was transferred to the Family Court of Australia. 

2. A further final hearing was promptly listed, but was unfortunately vacated due to the impracticalities in attempting to hear the matter, in the context of the current COVID-19 pandemic. It was appropriate under those circumstances that there be a reconsideration of the interim position due to the delay of the final proceedings for an unknown period of time. Whether or not a determination about children is made on an interim or a final basis, the best interests of those children are the paramount consideration. Those best interests are to be determined by a consideration of the matters set out at s 60CC of the Family Law Act 1975 (Cth), or at least by those that bear sufficiently upon the issue of best interests in the individual case. Depending on the allocation of parental responsibility, then the Court is to consider the arrangements for the children in accordance with the reasoning pathway that is set out in the Act. Where the Court is dealing with the matter as here on an interim basis, it is necessary that the Court recognises its inability to determine controversial matters and the importance that it place greater reliance on matters which are uncontested or objectively supported, although it must still have due regard to risks and uncertainty.

3. In this case, it was common between the parties that an interim order should be made that they equally share parental responsibility.  There is a presumption in the legislation in favour of an order for equally shared parental responsibility and neither party submitted that it should be displaced.  In any event, a stronger indicator that it was the appropriate arrangement to make in this case came from the parties’ agreement that that should be the case. 

4. Although there are strong differences between the parties and difficulties in communication between the parties, it is appropriate that they should both be involved in making important long-term decisions for Y and X. 

5. This conclusion means that the Court must consider sequentially whether an order for equal time ought to be made, and if not, whether an order for substantial and significant time is in the children's best interests and reasonably practicable. 

6. I turn then to the focus of the dispute between the parties.  It may be described in two ways.  Firstly, it is a dispute as to the mode and timing of a transition to overnight time for the children with their Father, and secondly, a dispute about arrangements for international travel, a dispute which takes place in the particular context that the Mother is a New Zealand citizen. 

7. Neither party places in issue an order for equal time on an interim basis and so the consideration as to equal time can be summarily disposed of.  As to the first of the issues, it is common between the parties that there should be a transition to overnight time.  That position of the parties incorporates the notion that overnight time is in fact in the children's best interests.  The dispute is as to whether that should happen now or happen subject to other arrangements. Such a position is accepted by each of the parties, in an uncontroversial context post the date of separation in May 2018, that the children have lived with their Mother, should at present continue to live with their Mother and that they have spent regular and frequent time with their Father, albeit not on an overnight basis. 

8. The s 60CC considerations that are principally engaged relate to the benefits of meaningful relationship, in particular between the Father and the children, the particular characteristics of these children, the parenting capacity, again particularly of the Father, and the nature of the relationships between the children and each of their parents. The impact of change upon the children is also one of the principally engaged considerations and while reference was made to allegations of family violence they did not appear to be put as indicating any ongoing risk of exposure on the part of the children. In that context, the Father seeks an immediate change in the arrangements for the children, such that they spend each alternate Saturday overnight with him and alternate Wednesday overnight with him. He then seeks that that transition to an arrangement where it be every alternate Friday through to Monday, accompanied by an alternate Wednesday through to Friday.

9. The Mother, for her part, seeks a transition which would commence with the current regime of daytime periods only, but would move to an alternate Saturday overnight and an alternate Wednesday afternoon.  She says that that transition should be made on the recommendation of a therapist.  That therapist or the particular therapist that she would like to make the recommendation is Dr B, who is Y's current therapist.  Sensibly, neither party seeks that there should be a different arrangement for X as opposed to Y. 

What then are the issues that the parties identify

1. The Mother’s case centres upon anxiety experienced by Y, potential anxiety for herself, the Father not adequately supporting the health needs of the children, the Father's refusal to communicate and the potential for conflict.  In terms of her anxiety, she raises the issue of its impact upon Y.

2. In examining the issues in these interim proceedings, I have the benefit of the parties’ evidence as it was produced for the final hearing.  That includes having the benefit of the family report, although I accept that the Mother's position renders the conclusions in the family report controversial.  She does not, however, dispute the observations made by the family report writer as opposed to the evaluation made by the family report writer. 

What then was the evidence about anxiety put forth to delay the transition to overnight time   

1. As at December 2019, the family report writer recorded the Mother's friend Dr C describing that Y calls out or screams at handover and is distressed at each hand over.  Dr C’s affidavit of 30 January 2020 noted that there is a lot of tension at handover and observed at handover the children were anxious, agitated and tense, often clingy, crying and distressed.  She did, however, describe that X transfers easily.

2. The Mother's affidavit did not identify current anxiety at handover.  The Mother reported to the family report writer at [56] and [57] that there had been an improvement in the children, especially over the previous two months.  That is the two months leading up to December 2019.  That corresponds with the interaction that Y has been having with Dr B.

3. The Father's material, and his supporting witnesses, speak to the Father and the children having a positive time together.  The family report writer's observations of interactions between the children and their parents note that the interactions were positive between the children and their Father, that children were able to leave the Mother without any concern and appeared to be happy and relaxed.  It spoke of appropriate positive and comfortable interactions between the Father and the children. 

4. The concern raised then is that a change to overnight time now will promote anxiety in Y and anxiety for the Mother.  An issue has been raised as to whether a decrease in the handovers that would accompany overnight time would decrease anxiety. 

5. An issue has also been raised that in moving to overnight time, the children may experience a broadening of what is currently a positive relationship with their Father as observed by the family report writer.

6. So the Court is confronted with a situation where there is a long-term history of daytime periods only.  Where what has been observed is positive and comfortable relationships, where the evidence points to a positive time with the Father, but the evidence also points to difficult and anxious handovers, albeit improving.  It is accepted by the parties that the arrangements should ultimately move to overnight time. 

7. While issues were also raised critiquing the Father's capacity, they were not such as to be capable of bearing significant weight in the interim dispute.

8. The question comes down to one of transition and whether that transition is as directed by Dr B or whether it is a transition that occurs now or a transition which occurs later and is as to whether or not it is extended. 

9. It is not a matter on the current state of the evidence, that it can be simply left to Dr B.  If that can be seen as an appropriate discretion, and I do not comment one way or the other at present, to vest that discretion in the treating practitioner the evidence does not support such here.

10. Should there be a transition to overnight time now? On balance, the answer is yes.  The broadening of the experience into substantial and significant time with the Father sits well with the positive relationships with the Father.  What would accompany overnight time is a decrease in changeovers, the changeover time being noted as being the focus of anxiety for both the Mother and for Y.  While the Mother raised her own anxiety as a matter that told against such a transition, noting that the Mother's position is that there should ultimately be a transition to overnight time, I do not place great weight upon that particular factor. 

11. The question also arises as to the extent of the time in it moving to overnight time.  The general extent should be as expressed in order 3 of the orders sought by the Father.  It is an appropriate arrangement because it is a reasonable transition from the current arrangements that the children are having with their Father.  While it moves to overnight time, it does so with minimal change. 

12. The Father makes a proposal that there should be a further transition. That should not be adopted without further consideration down the track that the position of the parents and how the children are at that point in time.  It is appropriate that that should not be predicted, despite the possible increase in Court proceedings that may be occasioned by not providing for it. 

13. On the question of school holidays, the Father's time should continue as it is during normal week time rather than moving to the Father having a block period of time.  Such a change to block periods of time are too great a change to impose in the current circumstances.  However, arrangements should be made so that the Mother has a clear half of the holidays available with the children and that she, in doing so, is thereby supported to maintain, as far as she is able to, her relationships with her family in New Zealand.  Such an order gives some certainty for her in terms of travel.  The Mother should be permitted to travel internationally.

14. At present, although the Father sought a mutual order in respect of international travel, there is no real call for such an order to be made in his favour and I note that it is not workable in the current arrangements as I will impose them. 

15. I note that the orders sought by the Father, orders 15 and 16, are sensible protections and orders 18 to 22, and as suggested by the Father, are sensible and supportive of the children.

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 25 March 2020

Associate:

Date:  30 March 2020