Francis and Rantaine

[2017] FamCA 552

FAMILY COURT OF AUSTRALIA

FRANCIS & RANTAINE [2017] FamCA 552

FAMILY LAW – CHILDREN – Parenting Orders

Family Law Act 1975 ss 60CC, 65DAA

Goode v Goode (2006) FLC ¶93-286

APPLICANT: Ms Francis

RESPONDENT: Mr Rantaine

FILE NUMBER: CAC 1695 of 2016

DATE DELIVERED: 6 July 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 6 July 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Beckmans, Walsh & Blair

SOLICITOR FOR THE RESPONDENT: Mr Crampton, Crampton Legal

Orders

I make orders as follows:

1. Order 7 of the Orders made on 11 November 2016 is discharged.

2. The children will spend time with and communicate with the mother as follows:

   a.During school term as agreed, but failing agreement in a four week cycle as follows:

   i.In week 1, on Friday from after school or at 3.10pm (whichever occurs first) to Monday before school or at 8.45am (whichever occurs first), with changeovers to occur at the children’s school at the commencement and conclusion of time;

   ii.In week 2, for a period of one night and one day as agreed, or failing agreement, from Friday after school or at 3.10pm (whichever first occurs) to Saturday at 3pm;

   iii.In week 4, on Friday from after school or at 3.10pm (whichever occurs first) to Monday before school or at 8.45am (whichever occurs first), with changeovers to occur at the children’s school at the commencement and conclusion of time;

   iv.By telephone on every Tuesday and Thursday with the mother to initiate the telephone call between 7-7.30pm to the father’s mobile and that the father immediately offer the phone to the children without undue distraction. 

3. The Application in a Case filed on 11 May 2017 and the Response filed on 6 June 2017 are otherwise dismissed.

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 Francis & Rantaine 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 1695 of 2016

Ms Francis

Applicant

And

Mr Rantaine

Respondent

REASONS FOR JUDGMENT

1. This matter concerns the mother’s application in a case filed on 11 May 2017, and specifically orders 3 and 4 of that application.  In that application, she seeks that the children spend time with her on three out of four weekends during school term, that orders be made for telephone time, that the children spend approximately three-quarters of the school holiday periods with her, during term time and about four weeks of the Christmas holidays with her, as well as orders for special occasions.

2. The father, by his response filed on 6 June 2017, seeks that the mother have each second weekend with the children, that there be orders for telephone time, half of school holidays and special occasions.  The arrangements sought by the father largely reflect the orders that are currently in place, which were made on 11 November 2016.  Those orders provided for the mother and the father to have equal shared parental responsibility, but for the children to live with the father and to spend time with the mother, largely in accordance with what is now the father’s response.

3. The order for equal shared parental responsibility brings into play the application of section 65DAA; however, the parents have refined the issues that are in the best interests of the children at this interim stage into what is a sensibly limited dispute. That dispute does not presently call for an order for equal time. That dispute does not dispute who it is that the children will primarily live with. It does not dispute whether or not there should be equal time because it is recognised that the parties live in B Town and C Town, which is approximately an hour apart.

4. It is a dispute as to the nature of what would be substantial and significant time between the children and their mother.  The orders currently cater for substantial and significant time, meaning that the children spend portions of schooldays with their mother, non-schooldays, holidays and special days.  It is agreed that they should have substantial and significant time with the mother.  The dispute, however, is as to, in their best interests, what is to be the nature of the substantial and significant time that they will spend with their mother.  The context of this dispute concerning interim proceedings means that I should be reluctant to be drawn into the merits of the substantive case, where findings are not possible.  Rather, I should look to the less contentious factual matters to seek to resolve the interim application.

5. The cases that were presented for the parents were largely as follows.  The mother relied upon several key factors in support of her application.  One of those was the assertion that the time that she spends with the children is currently inadequate and that that inadequacy is because of what was the focus of her application, that is, the anxiety that is reported about the children by the report writer.  The mother sheets home the reason for this anxiety as being the length of time between visits.

6. The mother also relied on the views of the children and made reference to some drug use issues on the part of the father.  The drug use issues, at present, have little if any bearing upon the determination in circumstances where it is agreed between the parties that he should remain the primary carer.  Even on the mother’s case, it seems to be agreed that there should be a break of up to two weeks in between when she sees the children, that is between weeks 2 and 4 or between weeks 4 and 1, that is, for the weekend that the children would spend time with him would equate to a two-week gap between her seeing the children.  So any suggestion that the orders sought by her involve a practical increase in the monitoring of the father because of that increase in frequency does not have traction in the case at present.

7. The father’s case made reference to the activities of the children not being disrupted, particularly the activities that they engage in on weekends, which the mother’s orders would involve a change to.  That submission was not supported by evidence which set out what it is that the children are involved with on weekends.  Reference was also made to maintaining the status quo as being in the children’s interests and reference was made to the key matter put forward by the mother, that is, the question of alleviation of the children’s anxiety.  The legitimate query was made by the father as to what the source of that anxiety might be and whether the proposal made by the mother would alleviate that anxiety.

8. As to the views expressed by the children, they are contentious.  That is reflected in the affidavit material of the father, where a different position is presented as to the views that the children might have.  The children are both young.  D is seven, almost eight.  E is six.  Both expressed a wish to live with their mother to the family report writer;  however, it is not a matter, at least in the interim, to which weight can be given, because it is contentious, the views are expressed by young children, they are yet to be the subject of testing, they were thought by the family report writer to be reflective of an anxiety about the mother and I note that even if they were to be accepted, they are not such as to cause the family report writer as to recommend a change in the living arrangements, generally.

9. The anxiety, according to the family report writer, seems to stem from a fear that both parents might abandon the children.  The family report writer thought that that might be allayed by regular contact with the mother.  I accept that, at this point, it is impossible to be definitive as to the source of the anxiety suffered by the children; however, an assessment of the history of the matter, which involved the mother’s relocation to study without the children, tends towards the conclusion offered by the family report writer.  This, ultimately, will be a matter for testing at the final proceedings.

10. While status quo was argued, it is difficult to see how it impacts upon the application by the mother, which does not disturb, in general terms, the living arrangements.  Such an argument may have more force if what was in issue was who the children would live with.

11. The leading case dealing with interim hearings involving children is Goode.[1]  Goode notes that the legislation, at paragraph 72, is supportive of the notion of substantial involvement by each of the parents in the children’s lives and notes that there are limitations on the ability of the Court to assess matters at interim proceedings.

    [1] Goode v Goode (2006) FLC ¶93-286.

12. I am only able to give a most limited assessment of the s 60CC factors at present. It does seem at present, however, that there is a likelihood that an increase in the frequency of the children seeing their mother will be of assistance to the children in the context where the nature of their relationship with their mother is one which is productive of anxiety, seemingly due to their uncertainty about it.

13. Given the issues that have been identified in the interim, it is appropriate in this case to give emphasis in this case to supporting the substantial involvement of the mother in the children’s lives.  Of the matters that have been sought by the mother, the first is that she would spend time with the children on three out of four weekends.  It is appropriate that an order be made for her to spend with the children on three out of four of the weekends, but not in the terms sought by her.  The increase in time shall be to spend some time with the children on three out of four weekends, in a manner which more closely reflects that recommended by the family report writer, that is, the orders should continue as they are now, but in week two of a four-week cycle, the mother should have one overnight and daytime, hopefully, as agreed by the parties, but if not agreed, from after school on Friday till 3 o’clock on a Saturday afternoon.  The parties may come to a better arrangement between them.  If they cannot, that is the arrangement that will stand.

14. As to the question of telephone time, the telephone time is largely unopposed.  I prefer the definite arrangements that are proposed by the father, as opposed to the more flexible arrangements suggested by the mother.  Again, it may be that the parties can come to an even better arrangement as the matter unfolds.

15. In relation to the change in school holidays sought by the mother, no particular advantage has been identified in relation to allaying the children’s anxiety or benefits for the children, and I decline to make those orders.

16. You will note that that leaves the balance of the orders made in November still operative.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 6 July 2017.

Associate: 

Date:  31 July 2017