Fitzroy & Oliversen (No 2)
[2021] FedCFamC1F 5
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fitzroy & Oliversen (No 2) [2021] FedCFamC1F 5
File number(s): CAC 833 of 2018 Judgment of: GILL J Date of judgment: 2 September 2021 Catchwords: FAMILY LAW – PARENTING – Application by the father to increase time with children – Whether orders to increase time in the children’s best interests – Benefits of meaningful relationship – Parenting capacity – Interim application by the mother to change the children’s surnames – Application dismissed Legislation: Family Law Act 1975 (Cth) ss 60CC, 65DAA Number of paragraphs: 38 Date of hearing: 25 August 2021 Place: Canberra Counsel for the Applicant: Ms Davis Solicitor for the Applicant: Goldbrook Family Law Solicitor for the Respondent: Self-representing ORDERS
CAC 833 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR FITZROY
ApplicantAND: MS OLIVERSEN
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
2 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The Orders 32 SEPTEMBER 2021, 4 and 7 made on 25 March 2020 in this matter are discharged.
2.The children (Y Fitzroy and X Fitzroy) spend time with the father each fortnight as follows:
(a)Every alternate weekend from the conclusion of school/childcare on Friday or 3:00pm to the commencement of school/childcare or 9:00am on Monday;
(b)Every Wednesday from the conclusion of school/childcare or 3:00pm to the commencement of school/childcare or 9:00am on Thursday; and
(c)At other times as agreed between the parties in writing.
3.Changeover for the purpose of Order 2 occurs at the children’s school/childcare.
4.If school/childcare is closed due to COVID-19 government restrictions or some other reason, Order 2 is suspended and the father’s time with the children each fortnight occur as follows:
(a)Every alternate weekend from Friday at 5:00pm to Monday at 5:00pm;
(b)Every Wednesday at 9:00am to Thursday at 5:00pm; and
(c)At other times as agreed between the parents in writing.
5.Changeover for the purpose of Order 4 occurs at a location agreed to by the parents in writing.
6.During the Term 3 2021 and Term 1 2022 gazetted school holidays, the time the children spend with the father pursuant to Orders 2 or 4 above is suspended, and the children spend time with the father as follows:
(a)During Week 2 of the school holidays from Wednesday at 9:00am to Sunday at 5:00pm; and/or
(b)At other times as agreed in writing.
7.For the purpose of Order 6, the school holiday period commences at conclusion of school on the last day of the term and week 2 commences on Saturday at 12:00pm of the middle weekend.
8.During the 2021-2022 Christmas New Year Holidays, the time the children spend with the father pursuant to Orders 2 or 4 above is suspended, and the children spend time with the father as follows:
(a)From the conclusion of school until 22 December 2021 at 5:00pm;
(b)From 28 December 2021 at 9:00am to 2 January 2022 at 5:00pm;
(c)Each fortnight, commencing on 3 January 2022, for a block of five (5) consecutive days (four nights), at times to be agreed between the parents in writing, but failing agreement from Wednesday at 9:00am to Sunday at 5:00pm during week 2 of the fortnight.
(d)In the event either party seeks a different arrangement for the Christmas holiday period under this order, they are to advise the other parent in writing no later than 4pm on 10 December 2021.
9.Orders 6 and 8 are suspended in the event the mother indicates to the father in writing that she wishes to travel to New Zealand in accordance with Order 10 below.
10.The mother may travel to New Zealand with the children for a total period of four (4) weeks per annum during the school holiday periods only and she is to inform the father of the dates and travel itinerary in accordance with Order 11.
11.The children be permitted to leave the Commonwealth of Australia to travel with the parents during their allocated times as per the Orders, or as agreed between the parents, as follows:
(a)That the travelling party notify the non-travelling party of the travel dates and provide the non-travelling party a copy of the air tickets, flight itinerary, accommodation details and telephone numbers four (4) weeks prior to departure.
(b)The non-travelling party shall provide the child’s passport in their control to the travelling party within 48 hours of receiving the travelling party’s notification to travel.
(c)That the non-travelling party communicate with the Children while overseas two (2) times per week with the non-travelling party causing a telephone call to be made to the travelling party at times agreed between the parties.
12.Orders 9 and 10 are suspended while Commonwealth Government travel and entry restrictions in relation to COVID-19 require a period of self-isolation following international travel.
13.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 in relation to COVID-19 restrictions apply.
14.The father’s Application in a Case is otherwise dismissed.
15.The mother’s application to change the surnames of Y Fitzroy and X Fitzroy be dismissed.
16.The proceedings are listed before a Judicial Registrar on a date to be notified for further directions including but not limited to any issue arising from the application of s 102NA of the Family Law Act 1975.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fitzroy & Oliversen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
These proceedings concern the interim care arrangements for the children, Y aged 6 and X aged almost 5, pending a final hearing in which one issue will be whether the children live with the mother in New Zealand. Directions have been given to progress the matter to a final hearing and it may be anticipated that the final hearing will occur in the first half of 2022.
The contest in relation to the interim arrangements occurs in the context of the proceedings being previously listed for final hearing in March 2020, but then proceedings only for interim disposition being determined on account of the COVID-19 restrictions then preventing the hearing from taking place.
The orders put into place at that stage provided for equally shared parental responsibility, and that the children live with the mother, spending each Wednesday overnight with the father, along with each alternate weekend from 9:00 am Saturday until 6:00 pm on Sunday. Orders also provided for school holiday time in a manner designed to allow the mother and children to have the opportunity to travel to New Zealand. These orders occurred in the further context that there had been no previous provision for overnight time, despite previous support for such coming from a family report and earlier child dispute conference recommendation.
The father now seeks orders for increasing time with the children, retaining each Wednesday overnight, but extending the alternate weekends firstly to be from Friday until Monday and, from term 2 of 2022, from Wednesday until Monday in week 1 and Wednesday to Thursday in week 2. The father also seeks greater blocks of time during the school holiday periods.
The mother opposes any change, particularly to provide for stability in the current COVID-19 crisis. Whilst the mother seeks interim orders to change the names of the children this is properly a matter to be dealt with at final hearing, and so the interim application as to name change will be dismissed.
The evidence
It is uncontroversial that the parties have a strained parental relationship. On the descriptions given by either, it may be observed that there is little scope for cooperation between them.
The father describes interactions with the children during their time with him, characterised by appropriate care in day-to-day activities, as well as engaging in more enjoyable activities, such as attending the beach together. He describes appropriate daily care of the children, and says that the children ask to spend more time with him.
On a matter of some controversy between the parties, being the care for the medical needs of the children, the father again describes appropriate care for the children. An aspect of this has involved the taking of Y to a general practitioner appointment, following his notification of the mother. This descended, on his account, into a hostile interaction, involving the mother engaging in some abuse of the father in the presence of the children at the reception.
The father notes that Y has a psychologist. He has sought advice from the psychologist to respond to stress described by Y regarding the current handover arrangements at the mother’s workplace. The father says that Y’s description of that stress was that it was because she finds it hard because she loves both of her parents.
The father is critical of the mother declining his requests for school holiday time with the children, meaning that the children spend time in school holiday care rather than with him. However, insufficient evidence is led by the father of the circumstances of the requests for school holiday time, such as the timing of the requests, to enable a determination that the mother has been unreasonable in declining the father’s requests.
The mother cites concerns as to the father’s attentiveness to the children, Y’s anxiety and X’s sensitivity to Y’s anxiety. She says that she is concerned at the father’s behaviour, and that he is using the children as a bargaining chip, and that he tries to control how the children act and respond. She alleges an incident of family violence in December 2018.
The mother describes her current care arrangements for the children, involving appropriate day-to-day care of the children and enjoyable activities for them.
The mother criticises the father for his non-attendance at gymnastics and other events. However, given the difficulties between the parents there is good reason that they do not attend events jointly in the presence of the children.
The mother criticises the father for not taking up offers of extra time with the children. However, it is far from clear that this is demonstrative of unreasonableness or lack of interest on the father’s part.
The mother describes interactions between the parties that are indicative of difficulties in relation to co-parenting. She alleges an instance of family violence in December 2018, and that the father has been obstructive in communications about the children, for example by diverting communication to be directed through lawyers.
The mother also recites health concerns about the children, particularly respiratory issues. She says that the father was uncooperative with her proposal to remove the children from the smoke of the Canberra bushfires, and allowed them to play/exercise outdoors at that time. She alleges that he has taken the children to his workplace in breach of COVID-19 restrictions, and has not participated in Zoom meetings with Y’s psychologist.
The mother also says that Y has expressed upset in terms 2 and 3 of 2021 with attending school on Wednesdays due to the prospect of going home with the father rather than the mother.
Discussion
The interim arrangements for Y and X have been set since March 2020, when they were five and three and a half years old respectively. They are now six and a half and almost five years old respectively.
Their current arrangements fall to be determined on the basis of what is in their best interests. While there is an alleged instance of family violence in December 2018, at handover, the protection of the children from exposure to family violence did not emerge as a major current issue, other than in the mother’s allegations as to the use of the children as a bargaining chip or method of control. The evidence did not establish a risk of significance in relation to this aspect, at this stage. It may be expected that this will be a matter to be considered at the pending final hearing.
The key s 60CC considerations, being the matters under the Family Law Act 1975 (Cth) that determine a child’s best interests, are those that relate to the benefits of meaningful relationship with each parent, the nature of those relationships, parental capacity, the individual characteristics of the children and the impact of change in arrangements.
As there are unchallenged orders for equally shared parental responsibility, the reasoning pathway at s 65DAA sets out the manner in which the court is to consider the arrangements for the children.
That requires a sequential consideration of whether orders for equal time, then orders for the children to have substantial and significant time with their parents are both in the children’s best interests and reasonably practicable.
Neither parent seeks orders for equal time and it may be taken, on that basis, that such are not at present in the best interests of the children. While it is arguable that the current orders constitute substantial and significant time, involving, in accordance with s 65DAA(3) time on weekends, holidays and school days, and allowing involvement in the children’s daily routine for each parent, the limited scope of the orders to allow involvement on occasions of particular significance makes this questionable.
The key factual matters to shape the orders on the mother’s case relate to Y’s current reaction to Wednesdays, Y’s struggles with anxiety, the current COVID-19 crisis and the desirability for stability, the limitations in the father’s capacity and the difficulties between the parents.
It is unclear how the current COVID-19 crisis points to there being no current change in the arrangements for the children, although it can be recognised that the crisis is a significant generator of stress generally for both children and adults.
The father’s evidence speaks to the benefits of meaningful relationship in the interaction and activities with the children. The evidence of their daily interaction also indicates that the father has sufficient parenting capacity, even noting the mother’s criticisms. While Y is reportedly suffering an increase in anxiety, it may also be seen that for the bulk of the time since the orders were made, she has not required the intervention of a psychologist. Further, to the extent that one is required now, Y is being given such support.
Under those circumstances, the benefits to Y and X of further time with the father, of further experience of the care that he has described in his affidavit, outweigh the matters that tell against that.
A further advantage of a change in the time with the children appears likely to also come from minimising both parents being involved in the handovers, which Y is reported to have found stressful. On the father’s proposal the requirement for face-to-face handovers diminishes.
These point to a Friday to Monday arrangement on the alternate weekends being appropriate in addition to the maintenance of the current Wednesday to Thursday arrangement during each week.
The COVID-19 restriction alternative proposed by the father is a sensible fall back in the event that school or childcare becomes unavailable.
The evidence does not, however, point to the second jump proposed by the father to occur in term 2 2022, which would see a block period of Wednesday to Monday each second week, with Wednesday overnight in the off week. This constitutes a sharp and major change which it is unclear would then benefit the children. Further, it is proposed to occur in a context where it is likely that the final hearing of the matter will, if not completed, be imminent. The closeness of a final hearing points away from taking such a second step.
The clear tension between the parties also points away from the father’s proposal that a parent offer the care of the children to the other in the event that a parent is unable to care for the children him or herself. While such an offer may be appropriate, such an obligation, in the context of the current relationship between the parties, is likely to be productive of stress and conflict.
The father also proposes a change in the holiday arrangements, which is opposed by the mother in part on the basis that it will further undermine the possibility of travel to New Zealand. Given that the matter is now soon to progress to final hearing I do not regard this as being so, providing as it does for four weeks to be spent in New Zealand and the suspension of the father’s holiday time to allow for such. The advantage of the proposal made by the father is that it gives the children better scope to enjoy periods of school holidays with him. It also removes an ongoing area of contention regarding the school holiday period, where the father says the mother is unreasonable in her responses to his requests, and the mother says the father is unreasonable in the timing of his requests.
The particular structure of the holidays and, in particular the Christmas break where the proposed orders permit the children to enjoy significant days with each parent is appropriately adapted to the children’s interests, and so orders should be made as proposed by the father for those arrangements with one exception. A notice provision is to be imposed upon the parents to ensure that in the event either seeks a different arrangement for the Christmas holiday period the other is given adequate notice of such.
The father sought mechanisms tailored to limiting the impact of the New Zealand travel on the children’s time with him on school holidays. Such mechanisms may be necessary in the longer term but, in the short term pending the final hearing are unduly restrictive and should not be imposed.
It may be observed that the orders are still limited in their address of occasions of significance. There was limited evidence of such and so this issue will fall to be determined at the final hearing.
Conclusion
Orders will be made to change the current regime generally as proposed by the father, including as to school holiday time. However, orders will not be made for the transition proposed by the father to occur following term 2 of 2022.
Having now been given filing directions for their trial material, the matter will be listed on a date to be notified before a Judicial Registrar for the purpose of further trial directions being given.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 2 September 2021
ANNEXURE A
Minute of Interim Orders Sought by the Father
1. That Orders 3, 4, 7 and 10 of the Orders dated 25 March 2020 in this matter are discharged.
2. From the date of these orders until the commencement of school in Term 2 2022, the Children spend time with the father each fortnight as follows:
(a) Every alternate weekend from the conclusion of school/childcare on Friday or 3:00pm to the commencement of school/childcare or 9:00am on Monday;
(b) Every Wednesday from the conclusion of school/childcare or 3:00pm to the commencement of school/childcare or 9:00am on Thursday; and
(c) At other times as agreed between the parties in writing.
3. Changeover for the purpose of Order 2 and 6 occur at the children’s school/childcare.
4. In the event that school/childcare is closed due to COVID-19 government restrictions or some other reason, Order 2 is suspended and the father’s time with the children each fortnight occur as follows:
(a) Every alternate weekend from Friday at 5:00pm to Monday at 5:00pm;
(b) Every Wednesday at 9:00am to Thursday at 5:00pm; and
(c) At other times as agreed between the parents in writing.
5. Changeover for the purpose of Order 4 and 7 occur at a location agreed to by the parents in writing.
6. From the commencement of school in Term 2 2022, the children spend time with the father as follows:
(a) During week 1 from the conclusion of school/childcare on Wednesday or 3:00pm to the commencement of school/childcare or 9:00am on Monday;
(b) During week 2 from Wednesday from the conclusion of school/childcare or 3:00pm to the commencement of school/childcare or 9:00am on Thursday alternating thereafter; and
(c) At other times as agreed between the parties in writing.
7. In the event that school/childcare is closed due to COVID-19 government restrictions or some other reason, Order 6 is suspended and the father’s time with the children each fortnight occur as follows:
(a) During week 1 from 9:00am Wednesday to 5:00pm Monday;
(b) During week 2 from 9:00 Wednesday to 5:00pm Thursday alternating thereafter; and
(c) At other times as agreed between the parents in writing.
8. When either parent is unable to spend time with the children pursuant to these Orders, the other parent is to be given the first opportunity to care for the children.
School Holidays
9. During the Term 3 2021 and Term 1 2022 gazetted school holidays, the time the children spend time with the father pursuant to Order 2 or 4 above is suspended, and the children spend time with the father as follows:
(a) During Week 2 of the school holidays from Wednesday at 9:00am to Sunday at 5:00pm; and/or
(b) At other times as agreed in writing.
10. From the Term 2 2022 gazetted school holidays and onwards, the children spend equal time with the parents during the school holidays as follows:
(a) Week 1 with the father and week 2 with the mother in even numbered years; and
(b) Week 1 with the mother and week 2 with the father in odd numbered years, alternating each year thereafter; and
(c) At other times as agreed in writing.
11. During the 2021-22 Christmas New Year Holidays, the time the children spend with the father pursuant to Order 2 or 4 above is suspended, and the children spend time with the father as follows:
(a) From conclusion of school until 22 December 2021 at 5:00pm;
(b) From 28 December 2021 at 9:00am to 2 January 2022 at 5:00pm; and
(c) Every alternating fortnight, commencing on 3 January 2022, for a block of five (5) consecutive days (four nights), at times to be agreed between the parents in writing, but failing agreement from Wednesday at 9:00am to Sunday at 5:00pm during week 2 of the fortnight.
12. From the 2022-23 Christmas New Year Holidays and onwards the children spend time with the parents as follows:
(a) From the conclusion of school to 27 December with the father in even numbered years and with the mother in odd numbered years alternating each year thereafter;
(b) From 27 December until 3 January with the mother in even numbered years and with the father in odd numbered years alternating thereafter;
(c) For the remainder of January to the commencement of school, as agreed in writing between the parents, but failing agreement alternating between each parent on a weekly basis.
13. For the purpose of Orders 9 to 10, the school holiday period commences at conclusion of school on the last day of the term and week 2 commences on Saturday at 12:00pm of the middle weekend.
New Zealand
14. Orders 9, 10, 11 and 12 are suspended in the event the mother indicates to the father in writing that she wishes to travel to New Zealand.
15. The mother may travel to New Zealand with the children for a total period of four (4) weeks per annum during the school holiday periods only and she is to inform the father of the dates and travel itinerary in accordance with Order 16:
(a) If the mother decides to travel during the term 1, 2 or 3 school holiday period to New Zealand and does not travel for the whole two (2) week period, the mother is to travel during week 1 of the school holidays only and the children are to spend the remainder of the school holiday period with the father in accordance with Order 9 and 10;
(b) If the mother travels to New Zealand during the Christmas-New Year school holiday period:
i. The mother may spend time with the children in New Zealand on Christmas Day in odd numbered years only;
ii. The mother may spend time with the children in New Zealand on the father’s birthday in even numbered years only; and
iii. On the children’s return to Australia, they spend two (2) consecutive weeks with the father commencing as soon as practicable, with any remaining time in the holiday period thereafter to spent equally between the parents.
16. That the Children be permitted to leave the Commonwealth of Australia to travel with the parents during their allocated times as per the Orders, or as agreed between the parents, as follows:
(a) That the travelling party notify the non-travelling party of the travel dates and provide the non-travelling party a copy of the air tickets, flight itinerary, accommodation details and telephone numbers four (4) weeks prior to departure.
(b) The non-travelling party shall provide the child’s passport in their control to the travelling party within 48 hours of receiving the travelling parties notification to travel.
(c) That the non-travelling party communicate with the Children while overseas two (2) times per week with the non-travelling party causing a telephone call to be made to the travelling party at times agreed between the parties.
17. That the orders 14 and 15 are suspended while Commonwealth Government travel and entry restrictions in relation to COVID-19 require a period of self-isolation following international travel.
18. 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 in relation to COVID-19 restrictions apply.
ANNEXURE B
Minute of Interim Orders Sought by the Respondent Mother
1. The current orders from 25 March 2020 in the matter remain in place and continue to be interim orders until such time as a final hearing regarding relocation to New Zealand can be attended to.
2. That the child, Y Fitzroy, born … 2015, surname be changed to “Oliversen-Fitzroy” and the Mother be at liberty to approach the Registrar of Births, Deaths and Marriages in the Australian Capital Territory to have the change of name recorded on the child’s birth certificate.
3. That the child, X Fitzroy, born … 2016, surname be changed to “Oliversen-Fitzroy” and the Mother be at liberty to approach the Registrar of Births, Deaths and Marriages in the Australian Capital Territory to have the change of name recorded on the child’s birth certificate.
0
0
0