Federal Circuit and Family Court of Australia
(DIVISION 1)
Harris & Harris [2022] FedCFamC1F 579
File number(s): SYC 548 of 2021 Judgment of: SCHONELL J Date of judgment: 10 August 2022 Catchwords: FAMILY LAW – PARENTING – Interim orders – Where the issues for determination were broadly when the father’s time with the children should increase and by how much, and what the holiday arrangements should be – Consideration of primary and additional considerations under s 60CC of the Family Law Act 1975 (Cth) – Orders made increasing time with the children, consistent with the single expert’s recommendations. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 69ZL Cases cited: Adamson & Adamson [2018] FamCA 523
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Marvel & Marvel (No. 2) (2010) 43 FamLR 348; [2010] FamCAFC 101
Mazorski & Albright (2007) 37 FamLR 518; [2007] FamCA 520
Sigley & Evor (2011) 44 FamLR 439; [2011] FamCAFC 22
Division: Division 1 First Instance Number of paragraphs: 51 Date of hearing: 4 August 2022 Place: Sydney Counsel for the Applicant: Ms Petrie Solicitor for the Applicant: Blumberg Family Lawyers The Respondent: Litigant in Person Counsel for the Independent Children's Lawyer: Mr Blank Solicitor for the Independent Children's Lawyer: Laura K Law ORDERS
SYC 548 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HARRIS
Applicant
AND: MS HARRIS
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SCHONELL J
DATE OF ORDER:
10 AUGUST 2022
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1.The respondent mother (“the mother”) is to retain the passports for X born 2010 and Y born 2014 (“the children”).
2.The applicant father (“the father”) shall spend time with the children in addition to the time set out in the orders made 4 August 2022 as follows:
(a)During the 2022/2023 summer holidays in an alternate week arrangement commencing at 12.00 noon on 25 December 2022, with changeovers to be each Sunday at 6.00 pm.
(b)During the school term:
(i)Commencing in Term 1 2023, the children shall spend three overnights per fortnight with the father from Friday after school to Monday before school; and
(ii)Commencing in Term 2 2023, the children shall spend overnight time with the father in the off-week from after school Wednesday to before school Thursday.
(c)During the short school holidays commencing from the end of Term 1 2023 for one half of each school holiday, with the father in the second half in odd numbered years and the first half in even numbered years.
3.For the purposes of facilitating changeover both during term time and/or school holidays, the parent who is receiving the children for their time with them shall be responsible for collecting the children from school, day care, vacation care or extracurricular activities outside of school, or from the Park B in Suburb C if the children are not attending any of these activities in accordance with these orders, unless otherwise…
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- Harris & Harris [2022] FedCFamC1F 579
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- [2022] FedCFamC1F 579
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CaseChat Overview and Summary
The court emphasised the importance of protecting the children from the risks and harms identified in section 60CC(2)(a) of the Act, giving it precedence over the benefit of the children maintaining a meaningful relationship with both parents. The court considered that while both parents recognised the importance of the children having a meaningful relationship with the other parent, they differed on how this should be achieved. Dr D's observations were pivotal, noting that the children were not at direct risk of harm from either parent but were at risk of harm due to ongoing parental conflict. The court also acknowledged the expert's recommendations regarding the children's time with their father. The additional considerations, such as the children's views and the parents' capacity to place the children's needs above their own, were evaluated within the context of the expert's advice.
The court concluded that the children's time with their father should be increased as per the expert's recommendations, ensuring it met the children's needs. The orders included specific arrangements for holiday periods and school terms, ensuring the children's safety and well-being. The court restrained the parties from enrolling the children in additional extracurricular activities without mutual consent and ordered the mother to retain the children's passports. The father's costs from a specific appearance were reserved for the final hearing. The form of the order is subject to review for minor errors or variations.
Orders
Orders of the court
SYC 548 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR HARRIS
Applicant
AND:
MS HARRIS
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SCHONELL J
DATE OF ORDER:
10 AUGUST 2022
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1. The respondent mother (“the mother”) is to retain the passports for X born 2010 and Y born 2014 (“the children”).
2. The applicant father (“the father”) shall spend time with the children in addition to the time set out in the orders made 4 August 2022 as follows:
(a) During the 2022/2023 summer holidays in an alternate week arrangement commencing at 12.00 noon on 25 December 2022, with changeovers to be each Sunday at 6.00 pm.
(b) During the school term:
(i) Commencing in Term 1 2023, the children shall spend three overnights per fortnight with the father from Friday after school to Monday before school; and
(ii) Commencing in Term 2 2023, the children shall spend overnight time with the father in the off-week from after school Wednesday to before school Thursday.
(c) During the short school holidays commencing from the end of Term 1 2023 for one half of each school holiday, with the father in the second half in odd numbered years and the first half in even numbered years.
3. For the purposes of facilitating changeover both during term time and/or school holidays, the parent who is receiving the children for their time with them shall be responsible for collecting the children from school, day care, vacation care or extracurricular activities outside of school, or from the Park B in Suburb C if the children are not attending any of these activities in accordance with these orders, unless otherwise agreed between the parties in writing.
4. The parties are hereby restrained from enrolling the children in any other extra-curricular activities other than the two activities that they are currently enrolled in without the consent of the other party.
5. The father’s costs of the appearance of 13 July 2022 is reserved to the final hearing.
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The Full Court in Goode & Goode (2006) FLC 93-286 (“Goode”) set out the procedural steps in an interim application, noting that in interim proceedings there may be little uncontested evidence. Consistent with the guidelines outlined in Goode and to the extent relevant and necessary, I have in these reasons identified the competing proposals of the parties, the issues in dispute, and the contested facts.Primary and additional considerations In applying the primary considerations, the benefit to the child of having a meaningful relationship with both of the parents is subservient to the need to protect the child from the risks and harms identified in the subsection. A meaningful relationship “is one which is important, significant and valuable to the child” (Mazorski & Albright (2007) 37 FamLR 518 at [26], cited with approval by the Full Court in Sigley & Evor (2011) 44 Fam LR 439). Both parties consider it important that the child have a meaningful relationship with the other parent. They just differ as to the way it can occur. As stated above, I am required when applying the primary considerations to give greater weight to the need to protect the child from risk and harm than to the benefit to the child of having a meaningful relationship with both parents. In relation to the question of risk, I place considerable weight on the observation of Dr D, where he states:153. The children do not appear to be at direct risk of harm from either parent. The children were exposed to psychological and emotional harm observing conflict and aggression between separated parents living together though this is ostensibly mitigated by their separation. They are now at risk of continued harm because of that ongoing conflict, but there is no evidence the children stand to be at risk in the isolated care of either parent. The children did not express a fear of harm occurring to them with either parent. The matters about which the parties are in dispute, in my view, do not touch upon the question of risk per se but rather exemplify the parties’ inability to be able to act constructively in the best interests of their children. In addressing the additional considerations, I observe the evidence as to the views of the children, which are clearly clouded by the question of the conflict between their parents. I note the firm recommendations of the expert moving forward as to the time that the children should be spending with each of their parents. It is not intended by either party’s orders that there would be a separation of the children from either of the children’s parents. There is no practical difficulty or expense of the children spending time with the other parent. Of considerable focus for the purposes of these interim proceedings is a consideration of the factors identified in s 60CC(3)(f) and s 60CC(3)(i), calling into focus the insight and capacity of the parents to place the child’s needs above their own, the attitudes of the parents to the child and the responsibilities of parenthood. The orders I propose to make address these considerations within the clear recommendations of the expert evidence about the need to increase the children’s time with their father and that it proceed in a way that meets the needs of the children.