HERMAN & DENNIS
[2012] FMCAfam 85
•13 January 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HERMAN & DENNIS | [2012] FMCAfam 85 |
| FAMILY LAW – Children – parenting – interim parenting orders – application in a Case – application for orders that children live with Mother – application for orders that children spend time with Mother – two girls aged 12 years and 10 years currently spending time with Father – where final hearing of parenting application scheduled for final hearing from 18 to 20 July 2012. FAMILY LAW – Children – parenting orders – interim orders – children’s schools – what schools children are to attend in 2012 – best interests of the children. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA |
| Dennis & Herman (No.2) [2011] FMCAfam 666 Goode v Goode [2006]FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 Herman & Dennis [2011] FMCAfam 1459 |
| Applicant: | MS HERMAN |
| Respondent: | MR DENNIS |
| File Number: | SYC 5373 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 11 January 2012 |
| Date of Last Submission: | 11 January 2012 |
| Delivered at: | Sydney |
| Delivered on: | 13 January 2012 |
REPRESENTATION
| Applicant: | Appeared in person |
| Respondent: | Appeared in person |
| Solicitors for the Independent Children’s Lawyer: | Ms Dhaliwal |
| Solicitor for the Independent Children’s Lawyer: | Shorehills Legal |
ORDERS
UNTIL FURTHER ORDER
Orders 1, 2 and 3 made on 20 December 2011 are discharged.
The children, X born (omitted) 1999 and Y born (omitted) 2001 are to live with the respondent father.
The children are to spend time with the mother as follows:
(a) from 2 pm on Saturday, 14 January until 2 pm on Sunday, 22 January 2012;
(b) for the first half of the autumn school holidays in 2012;
(c) for the whole of the July school holidays in 2012, and;
(d) each alternate weekend during the school term commencing from immediately after school on the Friday afternoon until the commencement of school on the Monday morning provided that if the Monday is a public holiday then until the commencement of school on the Tuesday morning;
(e) for a period of not less than two hours on the birthdays of each of the children, X and Y if such birthday should fall on a day when the child or children would not otherwise be spending time with the mother according to these orders, and;
(f) for the weekend in which Mother’s Day falls from immediately after school on the Friday afternoon until the commencement of school on the Monday morning.
For the purposes of order 3(a), the mother is to collect the children from the father at the McDonalds Family Restaurant at (omitted) on Saturday, 14 January and return the children to the father at the McDonalds Family Restaurant at (omitted) on Sunday, 22 January 2012.
For the purposes of orders 3(b) and 3(c), the mother is to collect the children from the father at the McDonalds Family Restaurant at (omitted) at the commencement of her time with them and return the children to the father at the McDonalds Family Restaurant at (omitted) at the conclusion of her time with the children.
Each party is permitted to communicate with the children, X and Y by telephone at any reasonable time when the children are in the case of the other party according to these orders.
The father is permitted to take the children to Perth for a holiday between 23 and 28 January 2012 and he is to provide the mother with written advice of the following information no later than 22 January 2012: (a) details of flight times and flight numbers for the children’s travel between Sydney and Perth; (b) details of the address or addresses where the children will be staying in Perth; and (c) details of a telephone number upon which the children can be reached whilst they are staying in Perth.
Both parties are permitted to take the children out of the State of New South Wales for a holiday during the time when the children are in their care according to these orders and for that purpose each party must inform the other party in writing no less than seven days before the proposed date of travel of the following: (a) details of any flight times and flight number, if applicable, for the children’s travel between Sydney and the interstate destination; (b) details of the address or addresses where the children will be staying whilst they are out of New South Wales; and (c) details of a telephone number upon which the children can be reached whilst they are out of New South Wales.
Neither party is to leave either of the children, X or Y without the supervision of a responsible adult known to the children.
Neither party is to use any form of physical discipline on either of the children.
The parties are to do all things and sign all documents as may be necessary to permit the child X born (omitted) 1999 to be enrolled at M High School to commence schooling at the beginning of the first school term in 2012.
The parties are restrained from enrolling the child X at any high school other than M High School without the consent in writing of both the parties or the leave of the Court.
The child Y born (omitted) 2001 is to continue to attend the B School and the parties are restrained from enrolling the child at any other school until she finishes her primary education without the consent in writing of both parties or the leave of the Court.
The parties are to arrange suitable counselling for each of the children, X and Y with the school counsellor of the school attended by each child or with such other counsellor as they may agree.
The parties file and serve all further affidavit material upon which they seek to rely, being one affidavit for each party and one for each other witness by Friday, 29 June 2012.
IT IS NOTED that publication of this judgment under the pseudonym Herman & Dennis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5373 of 2007
| MS HERMAN |
Applicant
And
| MR DENNIS |
Respondent
REASONS FOR JUDGMENT
The Mother has brought an application in a case seeking that the parties’ two daughters, X, aged 12, and Y, aged 10, should live with her until the final hearing of the current parenting application, which is listed for hearing at this Court from 18th to 20th July this year.
The Father opposes this application, and submits that the children should continue to stay with him until final orders are made.
The Independent Children’s Lawyer does not support the Mother’s application, submitting that for stability in the children’s lives, they should remain with their father until the final hearing in July.
Background
The background to this matter is that the parties have been involved in litigation about parenting matters, on and off, since 2007.
On 29th October 2009, Walker FM made orders after a defended hearing providing that the parties were to have equal shared parental responsibility for the children, X and Y, and that the children were to live with their mother and spend time with their father. Her Honour, in some detail, particularised the time that the children should spend with their father. There were a number of issues canvassed at the final hearing, including such issues as the school which the children should attend.
The children’s schooling has, because of events that have occurred since then, become a further issue which will need to be considered again by the Court today. There were contravention proceedings brought by the Father which were part heard; they have been overtaken by litigation before the Court in respect of a change of circumstances which occurred in May of last year. The Court made interim orders on 1st July 2011 in respect of those issues. What the Court was told in July was that early in May the Mother had left New South Wales to travel to the Northern Territory to undertake a course of training for future employment.
That course would require her to be away for some time, but at that stage, when the matter was before the Court, the time for the Mother to return to New South Wales was not immediately ascertainable. The Mother had not taken the two girls with her, but had left the girls in the care of her parents – the maternal grandparents – with whom, on the information before this Court, the children have a good relationship. Shortly afterwards, the children had gone into the care of their father.
On 1st July 2011, I made interim orders suspending the parenting orders of 29th October 2009, making an order for equal shared parental responsibility in respect of the children, providing that the children were to spend time with the Father from 3rd July until further order, requiring the Mother to return the children to the care of the Father by 12:30pm on that day (Dennis & Herman (No.2)[1].
[1] [2011] FMCAfam 666
The Mother had flown down from the Northern Territory to attend the Court proceedings. The Mother commenced further proceedings in December of last year, in which she sought to vary those orders on the basis that she had been made aware of an incident when the children were in the care of the Father, which caused her a degree of concern, where the younger child, Y, had been in her room and the Father had damaged the door.
The Mother brought an Application in a Case, which was filed on 9th December, and I heard submissions on 20th December. The Father did not attend Court on that day, but sent a message indicating that he opposed the urgency, and that the Mother claimed.
On 20th December I heard from the Mother and I heard from the Independent Children’s Lawyer. As a result, I made orders on that day providing for the Mother to spend block time with the children from 2:00pm on Friday 23rd December until 2:00pm on Tuesday 3rd January 2012 and again from 2:00pm on Saturday 14th January until 2:00pm on Sunday 22nd January 2012(Herman & Dennis[2].
[2] [2011] FMCAfam 1459
The second block time under that order is still to take place, and at the moment the children have been in the care of the Father. I made orders specifically providing for the changeover point at the McDonalds restaurant in (omitted) and the McDonalds restaurant at (omitted), and I made directions about filing and serving a Response by the Father, and an affidavit. That has since been done. The application was heard, or perhaps more correctly, further heard, before the Court on Wednesday 11th July.
Essentially, the Mother has expressed concerns about care of the children with their father, albeit conceding that the children have a good relationship with him, as they do with her. She seeks an order, on an interim basis, that the children should now live with her, she having returned to New South Wales. She seeks orders that the Father should spend time with the children for a block period of time, and on alternate weekends during the school term, and she seeks orders that the parties share the Easter school holidays, but that the children remain with her during the July school holidays. The July school holidays, I note, will conclude shortly before the final hearing of the parenting application, which is to start on 18th July.
The Mother also seeks that the Father should not leave the children unsupervised, and has expressed concerns in respect of that. The Father opposes those orders, and is strongly of the view that the children should remain living with him, and he has made arrangements for the children to be enrolled in schools near to the area where he lives. He seeks that the older child, X, should commence at the M High School, which is the high school in the immediate area near to him, and which would, in his view, cater for her needs when commencing her high school education, which she will do at the end of this month. He has enrolled the younger child, Y, at the B Primary School.
The Father also wishes to take the children to Perth with him for a holiday, after the children spend their next block period of time with their mother. His father and father’s wife live in Perth. The Father is not young, and there may not be too many opportunities for the children to spend time with their paternal grandfather in the future.
The Mother opposes this particular trip so close to the commencement of school, noting that she would be seeking to enrol the children at schools near where she currently lives with her parents in (omitted). She has nominated the schools which she would like the children to attend, but they are, of course, very different from the schools that the Father has nominated.
It is significant, too, that the Mother has formed a new relationship, as she is entitled to do, and has become engaged to a Mr F.. He is not on affidavit at this stage, but that will need to be dealt with before the final hearing. If he is to be a feature in the Mother’s life, then he would need also to be available to speak to the family consultant when the interviews are taken for the family report shortly. The Father, of course, has remarried, and there is no issue about the fact that the children have a good relationship with their stepmother, as she is, and of course they now have a child of their own; the children, again, have a good relationship.
The Independent Children’s Lawyer, as I said, does not support the Mother’s proposal. Mrs Dhaliwal has submitted that the final hearing has been set down for hearing in July. There have been a number of applications. The children have been living with their father since June 2011, and she submits that it is in the best interests of the children that they should remain living with their father for the time being, and she submits that it is not in their best interests for them to move, at this stage, for a period of another six months. The Independent Children’s Lawyer submits that a family report will be important, and noted the instability in the children’s lives brought about by the Mother’s temporary move to the Northern Territory.
The Independent Children’s Lawyer did not take the issues raised by the Mother lightly about the incident which led to the damage to the door, in respect of what must have been a fairly difficult situation at the time. The Father has given his explanation of the circumstances, saying that the child had become extremely upset. She had locked herself in her room, which is contrary to the policy in the household that there should be no locked doors. He says that she was threatening to jump out of the window, and he became concerned for her safety and forced the door. It is not possible on an interim hearing for the Court to make a definitive finding of fact. This, of course, was one of the issues referred to by the Full Court of the Family Court in Goode & Goode[3].
[3] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
So the Court must consider what interim arrangements should be made for the children that of necessity include arrangements for their schooling because the parents live too far apart for schools that would be mutually suitable for the parents. They either go to a school near where the Father lives or to the school near where the Mother lives and, of course, the parents have got different views as to what schools are appropriate.
And, of course, as the Full Court of the Family Court said in Re Gs children schooling back in 2000, again the best interests of the child are the paramount consideration. When the Court is making any parenting order, the best interests of the children must be the paramount consideration. The Court considers the factors in section 60CC, subsections (2) and (3) when ascertaining what the best interests of the children were.
The Mother in particular gave the Court a detailed submission addressing all of the subsection (2) and (3) issues in section 60CC of the Act. The Court also considers the matters in subsections (4) and (4A) noting that since the parties separated there have been a significant number of changes:
·the Father’s remarriage,
·the Father becoming a father again,
·the Mother forming a new relationship,
·the Mother spending an extended, but temporary period of time in the Northern Territory with changes to the children’s lives.
The Independent Children’s Lawyer seeks an order that both children should have counselling. She suggests from the school counsellor, although the Mother suggests that a school counsellor at the respective schools would only be able to offer limited assistance. The Independent Children’s Lawyer suggests that a family relationship centre would offer a wider range of services.
I had previously made an order restraining either parent from taking the children out of the State of New South Wales. The Mother, in her submission to the Court, whilst expressing reservations about the Father’s proposal to take the children to Perth so close to the end of the school holidays was not opposed to an order permitting either parent to take the children interstate for a holiday and, in fact, did not oppose overseas trips provided appropriate notice and information was provided.
It seems to me that in the care of whichever parent the children are to be in the interim that a holiday trip to another state could well be in the children’s best interests, whether they go with their mother or whether they go with their father. It certainly appears to the Court that the children have a meaningful relationship with each parent. The Mother I note specifically conceded that. The children on the evidence before me have a meaningful relationship with the Father’s current wife, their stepmother. They have a firm relationship with their maternal grandparents and indeed they appear to have a good relationship with their paternal grandfather albeit he lives in Western Australia and the children would not have nearly as much to do with him as they would their maternal grandparents.
The Court must consider stability in the children’s lives. I note the strong submission by the Independent Children’s Lawyer in this regard and it has been quite clear to the Court that these proceedings, both before Christmas and this week, have been conducted in the shadow of a three-day final hearing in six months time, which will involve the preparation of a family report and will involve the taking of evidence from each party and may well involve the taking of evidence from each party’s new partner, whether they be wife or fiancé or whatever.
I am of the view that the best interests of the children on this interim basis call for them to remain where they are until the matter can be dealt with in full at an interim hearing. They should spend regular time and frequent time with their mother and during the school term, they should spend alternate weekends with the Mother. In my view, pickup should be from the school at the end of school on the Friday and return should be at the commencement of school on the Monday or if it is a public holiday at the commencement of school on the Tuesday.
This has the advantage of avoiding confrontation between parents who are in a highly conflicted relationship and also involves the Mother being able to attend at the children’s schools, which would be of some benefit for her. Clearly, that cannot always take place because school holidays impose their own circumstances. I have considered the Father’s desire to take the children to Perth for a holiday in what is effectively the last week in January to spend time with his father, the children’s paternal grandfather.
It seems to me that a trip to Perth to spend time with family may well be beneficial to the children. The Father would need to provide appropriate information to the Mother and indeed I am of the view that children should be able to take interstate trips with their parents when they are in the care of a particular parent as long as the other parent is given appropriate information.
As for school holiday times, it had been the case under the orders made by Walker FM on 29th October 2009 that the children would spend the whole of the July school holidays with their mother and that they would spend the whole of the September school holidays, the spring school holidays with their father. In my view, that arrangement should be continued. I propose to make an order for the autumn school holidays to be shared, but that the children spend the whole of the July school holidays with their mother.
As for schools, bearing in mind that the children at least until the final hearing in July will be living during the school term with their father, that the Father’s choice of M High School for X to commence her high school education and for the B School for Y to continue her primary education would appear to be in the children’s best interests.
I would comment further under section 61DA of the Act as these are interim proceedings and there are presently in force orders for equal shared parental responsibility, I deemed it inappropriate under subsection (3) of that section to deal any further with the question of equal shared parental responsibility. So that order will remain in force.
The matter will otherwise be before the Court on Wednesday, 18 July 2012.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Scarlet FM
Date: 1 February 2012
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