Galpin & Galpin (No 2)

[2021] FCCA 449

FEDERAL CIRCUIT COURT OF AUSTRALIA

Galpin & Galpin (No 2) [2021] FCCA 449

File number(s):

BRG 15515 of 2020

Judgment of:

JUDGE TONKIN

Date of judgment:

9 March 2021

Catchwords:

FAMILY LAW – Children – interim parenting application – time the father is to spend with the children during term time – no issue of principle.

Legislation:

Family Law Act 1975 (Cth), ss 60B,60CA, 60CC, 60CC(2), 60CC(3), 65D.

Cases cited:

Carver & Hahn [2014] FamCA 470

Goode and Goode [2006] FamCA 1346

Marvel & Marvel (No 2) [2010] FamCAFC 101

Number of paragraphs:

28

Date of last submission/s:

5 March 2021

Date of hearing:

5 March 2021

Place:

Brisbane

Counsel for the Applicant:

Ms A. Bertone

Counsel for the Respondent:

Mr J. Selfridge

ORDERS

BRG 15515 of 2020

BETWEEN:

MS GALPIN

Applicant

AND:

MR GALPIN

Respondent

ORDER MADE BY:	JUDGE TONKIN
DATE OF ORDER:	9 MARCH 2021

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

1.Order 3 of the Orders made on 22 January 2021 is hereby discharged.

2.Unless otherwise agreed in writing between the parties, the children X born in 2010 and Y born in 2013 shall spend time with the parties in accordance with the current pattern in place for the children being a five, five, two, two overnight parenting arrangement such time to coincide with the time the child, Z spends with the father.

3.The father is at liberty to telephone the children on one occasion during the extended period the children spend with their mother.

4.The father will ensure that Y has his own bed and he shall encourage Y to sleep separately from his father.

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 under the pseudonym Galpin & Galpin (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE TONKIN

INTRODUCTION

1. This is the second interim judgment I have delivered in this matter in less than a few months. The resources of the Federal Circuit Court are scarce. There are thousands of parenting applications filed each year. The parties in this matter separated recently (August 2019) and have had the benefit of two interim hearings (one urgent) and four Court events. In my view little attempt was made by the practitioners to resolve the vast range of parenting orders sought be each party prior to Counsel appearing before the Court on 5 March 2021. That task was left to the Court. The manner in which this matter has been conducted in my view is inconsistent with approach to be taken under the Family Law Act. I urge practitioners in particular where interim orders are sought to discuss those matters prior to appearing in Court and to provide to the Court a draft set of interim orders consented to rather than taking the Court’s time to “discuss” each party’s respective position and attitude to Court orders. As can be seen from the Orders made by consent on 5 March 2021 the only issue between these parties was whether X and Y would spend six overnights with their father rather than seven overnights as sought be him.

2. I rely on the reasoning expressed in my previous judgment[1] in so far as it is relevant.

   [1] Galpin [2021] FCCA 84

   LEGAL PRINCIPLES

3. The law relating to interim hearings is well settled. In Carver & Hahn [2014] FamCA 470 at [14] Cronin J when considering an interim application said “It is trite to say that in such a limited hearing, I am not able to make any significant findings of fact on controversial and untested evidence.” He noted that the accepted procedure in interim parenting proceedings was discussed by the Full Court in Goode as follows:

   “[20] In Goode and Goode [2006] FamCA 1346; (2006) FLC 93-286 the Full Court observed that the procedure for making interim parenting orders is an abridged process where the scope of the inquiry is significantly curtailed. The Court observed that where findings of fact could not be made, the Court should not be drawn into issues relating to the merits of the substantive case which required findings to be made and where those findings were not possible. Despite the truncated hearing and the paucity of evidence, the Court still had to make a determination based on the best interests of the child. Thus, in Goode (supra), the Full Court indicated that the Court should:

   •Identify the competing proposals;

   •Identify the issues in dispute;

   •Identify any agreed or uncontested relevant facts;

   •Consider the matters in s 60CC that are relevant and if possible, make findings.”

4. In Marvel & Marvel (No 2) [2010] FamCAFC 101 the Full Court said at [120] to [122]:

   “[120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

5. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects and principles underpinning Part VII of the Act. Section 60CA provides “In deciding whether to make a particular parenting order in relation to a child a court must regard the best interests of the child as the paramount consideration”. The matters the Court is required to consider (in so far as they are relevant) are set out in section 60CC of the Act. Those matters include primary considerations (s60CC (2)) and additional considerations (s60CC (3)).

6. Section 65D of the Act gives the Court the power to make such parenting orders as it thinks proper. The parents in this matter have consented to an interim order for equal shared parental responsibility. The Court is required to consider whether an order for equal time is both in the children’s best interests and reasonably practicable. The father seeks orders for equal time in accordance with the current arrangement for the children of five, five, two, two overnights. The mother opposes that order.

7. If the Court is not satisfied that an order for equal time should be made, the Court is required to consider whether an order for the children to spend substantial and significant time is both reasonably practicable and in the children’s best interests. The mother proposes the children spend a block of six overnights with their father from Thursday after school until Wednesday before school each alternate week such proposal meeting the definition of substantial and significant time. The father proposes any reduction in his time with the boys.

8. In determining the children’s best interests the Court is required to consider the two primary considerations under section 60CC (2) of the Act namely:

   (a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

9. Both parents agree there is a “benefit to the children having a meaningful relationship with both of the children’s parents.” No issues of abuse, neglect or family violence arise in this matter the parents agreeing that their relationship was never marked by violence.[2]

   [2] Report of Mr F 12 January 2021 at [26]

10. Subsection 60CC (3) of the Act sets out a number of matters the Court is required to take into consideration when determining what parenting orders are in a children’s best interests.

    BACKGROUND

11. The applicant (mother) is 38 born in 1982 and the respondent (father) is 44 born in 1976. The parties met in 2001 in Sydney and commenced living together in about 2005 when they married. They settled in Brisbane. The parties separated on a final basis in August 2019. The applicant has re-partnered and her partner Ms B lives in her home at Suburb C. The respondent has not re-partnered.

12. At the time of writing X and Y were spending equal time with their parents in a 5:5:2:2 arrangement. That arrangement had been in place since December 2020. Z had recently returned to spending time with her father previously refusing to spend time with him. The parent’s consented to an order that commencing 5 March 2021 Z spend time with her father from after school on Friday until before school on Tuesday.

13. The applicant continued to rent a property at Suburb C and the respondent continued to live in the former matrimonial home at Suburb D. The distance between the homes is approximately 20 minutes by motor vehicle. The applicant had secured employment at Employer E. She was required to travel south to deliver the children to school and then travel north to her employment. She proposed that X and Y spend 8 nights a fortnight with her. This would require her to deliver and collect the boys to and from school on six occasions each fortnight whereas the current arrangement would require the mother to deliver and collect the children from school Monday to Friday one week a fortnight.

    MOTHER’S SUBMISSIONS

14. The mother complained that when the parties separated in August 2019 the father insisted on an equal time arrangement “which she never wanted.” I am unable to determine that issue at this juncture. In her submissions the mother raised issues regarding schooling which was not an issue before me.

15. I note that the parties had reached substantial agreement with respect to most parenting orders including importantly that Z would spend time with her father from Friday after school until before school on Tuesday each fortnight. They had also agreed to week about time during school holidays and arrangements for special days. By virtue of the orders they consented to they were committed to engaging in family therapy and jointly supporting the children in the best manner possible.

16. In her submissions the mother argued that changing arrangements for the boys will provide them with “more stability, fewer change overs and more time with Z.” There is no evidence that changing the arrangements for the boys would provide them with “more stability.” That appears to be a mere assertion. I accept however that the father’s proposal would result in Z spending only two overnights a fortnight with her brothers whereas if the children spent time together Z would spend four overnights with her brothers in her father’s household. I accept it is early days for Z and she has only recommenced spending time with her father since 22 January 2021. I accept that in accordance with the father’s proposal Z would spend only two overnights out of four exclusively with her father. I see that as a benefit to Z and her relationship with her father given the disruption that has been caused likely as a result of parental conflict with respect to these proceedings. Z would otherwise spend half of each school holiday with her brothers. I have taken that into account in determining what orders are in the children’s best interests.

17. The mother deposed that X is often angry when she collects him from school or from the father’s care. He is emotional on some days. She said he lost his hearing aid on three occasions. I note that the parents have agreed that all the children should continue to engage with their current psychologist Dr G. I anticipate that Dr G is best placed to deal with any emotional issues X is currently experiencing.

18. The mother complained that Y did not have his own bed or his own room or his own space at his father’s home and slept in his father’s bed. She deposed that Y is confused about the rules and routines which are very different from house to house. He has put on weight and is struggling academically and now receives literary intervention. I have made an order that the father ensure that Y has his own bed and encourage Y to sleep separately from his father (perhaps with X in the same room). Again these are matters that the parents are likely to gain assistance from the family therapist or the children’s psychologist.

19. The mother seeks to establish an 8/6 arrangement for the boys. She submitted that “the finger pointing between the parents and their deteriorating communication is not conducive to equal time arrangements.” I accept that parental conflict is inimical to the children’s welfare however I am satisfied that these parents have resolved most of the contentious issues between them by entering into consent orders.

    FATHER’S SUBMISSIONS

20. The father submitted that there was no evidence to cause the arrangements for the boys to be changed. He said they were well settled in the current arrangement which had been in place since December 2020.

21. He said since separation there had been an established pattern for the boys and their father where they spend two nights with the father five with their mother. The boys continued to attend H School and have formed close bonds with their peers. They continue to live in the former matrimonial home. The father said he had no plans to move from that home.

22. He said that H School is the feeder school for J School where Z attends. The schools share an oval. The father drops the boys at school at 6.45 a.m. (before school care opening at 6.30 a.m.) and on the occasion Z spends time with her father she is dropped off at 7 a.m. He said the Library Hub at J School opens at 7 a.m.

23. The father deposed that the family consultant did not recommend an 8/6 arrangement for the boys or a 10/4 arrangement for Z. He recommended that X and Y spend time with the father for no less than six days of each fortnight and Z spend time with her father for no less than four days each fortnight during school terms. I accept that accurately reflects the recommendations of the family consultant following interviews with both parents and the children. The father observed that both parties have now agreed that the time Z spends with her father should move forward to alternate weekends from 4.30 p.m. Friday until before school Monday. Since orders were made on 22 January 2021 Z has spent time with her father where she was previously resisting spending time with him. He is optimistic that given time Z will spend increasing time with her father. Both parents emphasized the importance of the children having the benefit of a meaningful relationship with each parent and I accept that both parents will facilitate and encourage the children’s relationship with the other parent.

24. The evidence in this matter has not been tested. The parties have reached substantial agreement in relation to most matters (albeit after lengthy discussion in Court). I note that the father made reasonable compromises with respect to a number of orders sought by the mother (Counsel for the father advising the Court with words to the effect “that proposal seems sensible and unless I have instructions to the contrary the order is appropriate etc…”)

25. I repeat what I said at paragraph [103] of my previous judgment that “there is no issue regarding the parent’s willingness to be involved in decisions concerning the children. Post separation they reached agreement regarding a shared care arrangement for the children. As the family consultant observed both parents presented reasonable arguments for the respective positions taken by each of them regarding the school the children should attend long term.”

26. The family consultant indicated at [18] “in the context of discussing future parenting options the parties acknowledged there could be some merit in parenting arrangements which would afford X and Y the opportunity to spend some exclusive time with their father and Z the opportunity to spend some one on one time with her mother.” Similarly the father’s proposal would allow Z to spend some exclusive time with her father which I regard as appropriate and in her best interests.

27. I note that the family consultant observed at [133] that “the parents impress as relatively bright and capable as well as strongly committed to their children. They both expressed some interest in developing a more communicative, cooperative and collaborative parenting alliance and in my view they may well have the requisite skills to achieve that. Consequently it may be that an equal time parenting arrangement could be a viable future option.”

28. I am satisfied that the orders consented to by each of the parties indicated their intention to work together to maximise opportunities for their children and provide each child with the best care available. The orders also evince an intention by both parties to consult and cooperate regarding matters impacting on the children. In particular the fact that the parties were able to reach agreement on almost all issues indicates that they are capable of collaborating when focusing on the children. I am not satisfied there is any reason to change the current arrangements for the boys. Moreover I am satisfied that the current arrangement is in the boy’s best interests. I make orders accordingly.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Tonkin.

Dated:       9 March 2021