Gardiner and Robbins

[2016] FCCA 2393

FEDERAL CIRCUIT COURT OF AUSTRALIA

GARDINER & ROBBINS [2016] FCCA 2393

Catchwords:
FAMILY LAW – Parenting – parenting orders – whether a child’s time with his father should be extended. 

Legislation:

Family Law Act 1975, s.60CC

Applicant: MS GARDINER

Respondent: MR ROBBINS

File Number: DGC 3313 of 2015

Judgment of: Judge Small

Hearing date: 10 August 2016

Date of Last Submission: 10 August 2016

Delivered at: Dandenong

Delivered on: 10 August 2016

REPRESENTATION

Counsel for the Applicant: Ms Mansfield

Solicitors for the Applicant: Roberts Beckwith Partners

Counsel for the Respondent: Mr Carne

Solicitors for the Respondent: Kerr & Thomas

Counsel for the Independent Children’s Lawyer: Ms Nicholls

Solicitors for the Independent Children’s Lawyer: Dandenong Family Lawyers

ORDERS

1. The matter be adjourned to the Federal Circuit Court of Australia on 6 October 2016 at 10:00am for an Interim Hearing.

2. The parties shall make, file and serve an updated financial statement and any affidavit material on which they seek to rely at the interim hearing by no later than 22 September 2016  at 4:00pm.

3. The Independent Children’s Lawyer is excused from attending the Interim Hearing on 6 October 2016.

4. The matter be adjourned to Federal Circuit Court of Australia on 30 October 2017 at 10:00am for Final Hearing, with an estimated hearing time of 4 days (“the Final Hearing”).

5. In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the Fees”) not having been waived, the party responsible for the payment of the Fees or any of them shall pay or cause to be paid such of the Fees as shall be payable by that party in accordance with and within the time specified in the Family Law (Fees) Regulation 2012, that time being no later than 28 days prior to the final hearing.

6. Both the Applicant and the Respondent make, file and serve on each party by no later than 4.00 pm, fourteen (14) days prior to the Final Hearing:

   (a)one affidavit setting out any further evidence in chief; and

   (b)one affidavit of each witness intended to be relied upon at the Final Hearing.

7. The Independent Children’s Lawyer make, file and serve on each other party by no later than 4.00 pm, seven (7) days prior to the Final Hearing:

   (a)one affidavit setting out any further evidence in chief; and

   (b)one affidavit of each witness intended to be relied upon at the Final Hearing.

8. Each party and the Independent Children’s Lawyer must make, file and serve an Outline of Case document by no later than 4.00 pm, two (2) days prior to the Final Hearing, including the following:

   PROPERTY

   (a)a list of the documents to be relied upon;

   (b)a brief chronology;

   (c)a list of all of the assets, liabilities and financial resources claimed to be part of the asset pool;

   (d)a list of contributions claimed or contended for;

   (e)a list of other factors relied upon (s.75(2) factors);

   (f)the percentage adjustment contended for;

   (g)the main contentions on disputes as to:  

   (i)what items are to be included in the pool;   and

   (ii)the value of each asset in the pool;

   (h)a statement of the precise orders sought;

   (i)(if applicable) whether the trustee of a superannuation fund has been afforded procedural fairness in relation to a proposed superannuation splitting order; and

   (j)one table between the parties setting out the values of assets and liabilities to be relied on at the hearing, each to be marked “agreed” or “in dispute”.

   PARENTING

   (a)a list of the documents to be relied upon;

   (b)a brief chronology;

   (c)an outline of contentions with respect to:

   (i)whether the presumption of equal shared parental responsibility applies (s.61DA),

   (ii)the considerations relevant to equal time and substantial and significant time (s.65DAA);

   (iii)each of the considerations relevant to determining the best interests of the child(ren) (s.60CC factors);

   (iv)other relevant considerations (including, ss.60CG, 61F, 65DAB, 65DAC, etc); and

   (v)any other matters  relevant to the decision; and

   (vi)a statement of the precise orders sought.

9. No party shall be entitled to rely on any affidavit material filed after the above deadlines without leave of the Court.

10. If either party is to have legal aid funding withdrawn for the Final Hearing:

    (a)The solicitors shall confer no later than 7 days before trial as to which witnesses are required for cross examination at the Final Hearing; and

    (b)The solicitors are to ensure all witnesses to be relied upon are on Affidavit and are available to give evidence at Final Hearing, including the Family Consultant if any, and any other expert witness.

11. No later than 7 days before the Final Hearing each party advise the Court of the affidavit material he/she seeks to rely on at Trial.

12. No later than 2 days prior to the Final Hearing the parties shall provide to the Court an agreed list of factual issues in dispute.

13. Pursuant to s.62G(2) of the Family Law Act 1975 the parties and the child X born (omitted) 2010 (“the child”) attend upon a Family Consultant nominated by the Regional Coordinator, Child Dispute Services in the Melbourne Registry on a date and at time/s to be advised for the purposes of the preparation of a Family Report, with such Family Report to be released by 15 September 2017.

14. The Family Report to deal with the following matters:

    (a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

    (b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and

    (c)the likely effect on the child if the Court were to make Orders in terms of the father’s/mother’s proposed orders;

    (d)any other matters that the Family Consultant considers important to the welfare or best interests of the child.

15. The parties send copies of all of their Court documents to the Family Consultant within seven (7) days of being requested to do so by the Family Consultant.

16. If a party is not represented by a lawyer, then within seven (7) days of being notified of the Family Consultant that party deliver or cause to be delivered to the Family Consultant copies of the following documents:

    (a)all relevant applications and responses filed by him/her, or filed on his/her behalf, in the current proceedings;

    (b)all relevant affidavits filed by him/her, or filed on his/her behalf, in the current proceedings; and

    (c)any family violence intervention or restraining orders currently in force.

17. For the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer.

18. The parties comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Family Consultant.

19. If either party proposes to have the relevant Family Consultant available for cross examination purposes at the Final Hearing then such party will (if applicable authorise their lawyers to) notify the relevant Family Consultant of his or her need to attend Court no less than seven (7) days prior to the Final Hearing.

20. Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

21. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

    (a)a Children’s Court;

    (b)a child protection authority;

    (c)a State or Territory legal aid authority; and

    (d)a convener of any legal dispute resolution conference.

22. Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

AND THE COURT ORDERS UNTIL FURTHER ORDER THAT:

1. In weeks one and two of the four week cycle, the Father shall spend time and communicate with the child X born (omitted) 2010 (“the child”) from 3:30pm or after school Thursday to 6:00pm on Sunday.

2. In week three of the four week cycle the Father shall spend time and communicate with the child from 7:00pm Saturday to 6:00pm Sunday.

3. In week four of the four week cycle, the Father shall spend time and communicate with the child from 3:30pm or after school to 7:00pm on Wednesday.

4. By consent, the Father shall spend time and communicate with the child from 5:00pm on Christmas Eve to 3:00pm on Christmas Day in 2016.

5. During school term holidays, subject to the Father having leave from his employment, the Father shall spend time and communicate with the child from Thursday to Monday in weeks one and two of the said holidays.

6. In the long summer holidays, the Father shall spend time and communicate with the child from 11 January 2017 to 16 January 2017.

7. Changeover that does not occur at the child’s school shall occur at Family Life in (omitted) and if Family Life in (omitted) is not available, then changeover shall occur at the McDonald’s Restaurant on the corner of the (omitted) and (omitted) in (omitted).

8. The parties shall do all acts and things and sign all documents as may be necessary to enrol at Family Life in (omitted) for changeover and they shall provide copies of any such documents as may be necessary to the Independent Children’s Lawyer.

9. The Father shall be at liberty to attend all school events and extracurricular activities that parents would ordinarily attend including but not limited to the Father’s Day Breakfast at the child’s school, noting that there is an intervention Order in place prohibiting the Father from approaching or remaining within five (5) meters of the wife and the child and this prohibition with respect to the child is suspended during all time spent between the father and the child pursuant to these Orders.

AND THE COURT NOTES THAT:

A.At the date on which a copy of the Report is to be provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

B.Section121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court

C.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 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 these particulars are included in these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Gardiner & Robbins is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 3313 of 2015

MS GARDINER

Applicant

And

MR ROBBINS

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. The matter of Gardiner & Robbins comes before me today for mention in circumstances where a family report has been prepared by Family Consultant Ms A, which was released about a month ago. 

3. The issues that are not in dispute are that the child, who is known as X but his name is actually X, born on (omitted) 2010, lives with his mum and he spends time with his father pursuant to orders that I made after a section 11F child‑inclusive conference.  Those orders were made on 10 February 2016.

4. The father works on a regular four-week cycle of shift work.  He works from 6 am to 6 pm on Mondays to Wednesdays in weeks 1 and 2 of the four-week cycle and Thursdays to Saturdays in weeks 3 and 4.  Currently, he spends time with X in weeks 1 and 2 from 3.30 or the end of school on Friday until 6 pm on Sunday, and in week 3, from 7 pm on Saturday to 6 pm on Sunday, and I think in week 4 there is a Wednesday evening/afternoon from after school till 6 pm.

5. The father wishes to extend that time so that he would spend from 3.30 or after school on Thursday to 6 pm on Sunday in weeks 1 and 2 and instead of 7 pm on Saturday to 6 pm on Sunday, he would like 6 pm on Sunday to 9 am on Wednesday in week 3.  He says that if there were that extension, there is probably not the same need for the catch-up time on the Wednesday in the fourth week.  I am not quite sure what he wants if I don’t provide those extra times but I assume, or I infer, that he would want that time to remain if there were not going to be any extra time. The father also seeks extra time in the school holidays in the September/October holidays and also time in the long summer holidays.

6. The mother seeks the status quo. 

7. In the course of submissions, one of the issues in dispute was settled in that for this year at least the father will spend time with X from 5 pm on Christmas Eve to 3 pm on Christmas Day in 2016.  That is, can I say, a significant concession on the part of the mother because her (omitted) faith means that she spends most of the Christmas celebrations on Christmas Eve rather than Christmas Day and she has heard what the father’s counsel has said about it being an important time for children, where they wake up on Christmas Day and I simply note that that is a considerable and significant concession on her part.

8. She seeks to have the status quo in the regular weeks and to extend the holiday time so that there are two periods of two extra nights during the September/October time, so an extra two nights in each week and in the long summer holiday an extra period of two extra nights, whereas the father is seeking an extra week in the long summer holiday.

9. X is said to have some special needs including some developmental delay and the mother complains that the father does not recognise that and that the father concentrates on what are X’s strengths and his resilience rather than acknowledging that he does have some issues.

10. So the issues in dispute are whether time in weeks 1 and 2 during school terms should extend to Thursday to Sunday rather than just Friday to Sunday;  whether in week 3 the time should change altogether from Saturday to Sunday, to Sunday to Wednesday;  and whether there should be extra time in the school holidays;  and also, where the changeover should happen, the changeover that does not happen at school should happen in a supervised context at Family Life at (omitted) or whether it should continue to happen at McDonald’s. 

11. The mother and the independent children’s lawyer seek (although the independent children’s lawyer’s view is more neutral but she leans towards) changeover at Family Life – whereas the father wants changeover at McDonald’s.  The mother says that she fears the father, that there is a two-year intervention order in place which was made after a contest of two days, with the police being the applicant, and that X himself is an affected family member or an affected person under that intervention order.

12. The matters which I am to take into account – clearly include the independent evidence of the family consultant and the evidence of the psychiatrist Dr M, who has essentially said that both parents suffer from anxiety disorders and have obsessive-compulsive traits or obsessional traits to their personalities. The fact that they have come together with those traits in this matter is somewhat of a perfect storm and unusual, both unusual and unfortunate when X is caught in the middle of it.

13. There is no doubt that both these parents love this little boy dearly.  He is said by the family reporter to have a warm and close relationship with his father.  She says that the father is more able to focus on X’s strengths and resilience but that he may overestimate X’s ability to adjust to change and that the situation in which X spends time with his father at the moment is pretty irregular.  Although over a four-week period that rolls on regularly, the time within the four-week period is fairly irregular.  The family consultant knew about the intervention order and about the mother’s concerns and her recommendation was that the time not change at this stage.

14. The issue for me is really whether we go on with the status quo or something changes and my view is that at every time we come to court, unless there is some really significant thing happening or reason why not, something should change every time we come to court.  This is a progressive process and it seems to me that unless it is clearly not in this little boy’s best interests for things to change, then something, indeed, should change.

15. The mother says that the father’s proposal is too much, too soon, that he wishes to go from two nights at a time – or one night and two nights at a time to three nights on one occasion and that the pattern of that time would be a very big change for him.  Certainly a whole week would be a very big change for X in terms of the fact that at the moment he is only spending two nights at a time with his father.

16. When I look at the law in relation to this, of course, I must take X’s best interests as being my paramount consideration.  It is not what mum wants or mum is afraid of or what dad wants or what dad is concerned about, it is what is in X’s best interests and we have here a child who, by all accounts, has some special needs.  I am not actually sure what those special needs are and they have not been fully defined but it seems clear that there are some developmental issues with X.  There is agreement, as I said, that he will continue to live with his mother at this point and spend time with his father.

17. When I look at the 16 matters that are set out in section 60CC of the Family Law Act – I am not going to go through each one of them when I have another matter waiting and it is after half past 3 and the matter is a mention - I certainly have all of those matters in my sight and certainly the ones to do with family violence and the need to keep this child safe from the conflict between his parents. The conflict between his parents is very real and there is evidence before the Court that he is exposed to animosity between his parents.

18. Animosity and verbal conflict between parents is a form of family violence under the Family Law Act and exposing a child to family violence – in other words, exposing a child to verbal arguments between his parents is a form of family violence and is a form of abuse of a child, in itself, under the provisions of the Family Law Act. It is very important that we protect a child as much as is possible from such verbal animosity between his parents, even if there is no animosity or risk to the child, although the mother is concerned about the way the father takes care of X, saying that he comes back distressed and hungry from time with his father.

19. And I consider the fact that the family reporter says there is clearly a warm and close relationship between X and his father. 

I certify that the preceding eighteen (19) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 13 September 2016