Hollings and Green

[2017] FamCA 171

FAMILY COURT OF AUSTRALIA

HOLLINGS & GREEN [2017] FamCA 171

FAMILY LAW – CHILDREN – PARENTING – Best Interests of the children – Where parenting orders have been made by consent as to substantive issues – Where a discrete issue as to the children’s sporting activities remains to be determined – Where the minimisation of parental conflict is a significant consideration – Where each party should be able to engage the children in activities during their time – Order made by consent that the parents be at liberty to attend important activities regarding the children.

FAMILY LAW – COSTS – Independent Children’s Lawyer’s costs – Where consideration of general principles – Where appropriate that order be made for parties to pay equally the Independent Children’s Lawyer’s costs.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA,

Goode and Goode: [2006] FamCA 1346
Mazorski v Albright[2007] FamCA 520
McCall & Clark (2009) FLC 93-405
MRR v GRR [2010] HCA 4

APPLICANT: Mr Hollings

RESPONDENT: Ms Green

INDEPENDENT CHILDREN’S LAWYER: Ms Nikitin

FILE NUMBER: PAC 534 of 2014

DATE DELIVERED: 22 March 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 6, 7 and 8 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Druitt

SOLICITOR FOR THE APPLICANT:	Turner Freeman Lawyers
COUNSEL FOR THE RESPONDENT:	Ms Kennedy

SOLICITOR FOR THE RESPONDENT: Shedden & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Reheby

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Nikitin of Legal Aid NSW Penrith

Orders

By Consent:

1. That the mother and father be at liberty to attend on occasions significant to the welfare of the children being occasions relating to the children’s schooling, sporting activities, religious education, extracurricular activities and other occasions significant to the children’s welfare where the attendance of a parent is to be reasonably expected.

It is otherwise ordered:

1. That otherwise all outstanding applications are dismissed.

2. That within two months from this date the father pay to Legal Aid NSW by way of contribution to the Independent Children’s Lawyer’s costs in the sum of $5,161.20.

3. That within two months from this date the mother pay to Legal Aid NSW by way of contribution to the Independent Children’s Lawyer’s costs in the sum of $5,161.20

4. That proceedings be removed from the active pending cases list.

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 Hollings & Green 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 PARRAMATTA

FILE NUMBER: PAC 534  of 2014

Mr Hollings

Applicant

And

Ms Green

Respondent

REASONS FOR JUDGMENT

1. These proceedings are long running parenting and property proceedings commenced by the applicant father in the Federal Circuit Court of Australia in February 2014.

2. The proceedings did not reach hearing in that court on two occasions before they were transferred to this Court in February 2016.

3. Trial directions were made in this Court in May 2016 allocating an estimated five days for hearing. Trial dates were fixed for five days commencing 6 February 2017.

4. On the first day of trial, proceedings as to property were resolved by consent and orders finalising that issue were made as to the sale of the former matrimonial home and the distribution of the proceeds of sale.

5. On 7 February 2017 the parties were able to substantially resolve parenting issues leaving only a discrete issue for judicial determination and the Independent Children’s Lawyer’s (‘ICL’) application for costs.

6. Orders were made by consent as follows:

   1.That the mother be permitted to relocate with the children to a residence within the Sydney metropolitan area including the Local Government Area of B Town to the south.

   2.That the mother shall give to the father not less than 30 days’ notice of her intention to relocate with the children, such notice to be provided by text message to the father’s mobile phone and shall include the address of the residence, any landline number for that residence and any other related change to the contact details for the mother and for the children.

   3.Within 30 days of the father receiving notification from the mother pursuant to order 2, the father shall give the mother not less than 30 days’ notice of his intention to relocate with such notice to be provided by text message to the Mother’s mobile phone and shall include the address of the residence, any landline number for that residence and any other related change to the contact details for the father.

   4.That the mother and the father have equal shared parental responsibility for the children of their relationship namely;

   (a)C born …, 2005,

   (b)D born …, 2006, and

   (c)E born …, 2011.

   5.        That the children spend time with the Father as follows:

   (a)Until the end of the 2017 school year each alternate weekend from after school Friday or if Friday is not a school day, 3pm until the commencement of school the following Tuesday;

   (b)From the second weekend of the first school term in 2018 and each alternate weekend thereafter from after school Friday or if Friday is not a school day, 3pm to before school on Wednesday;

   (c)One half of the school holiday period as agreed between the parties in the absence of agreement between the parties, for the first half of each school holiday period in odd numbered years commencing in 2017, and the second half of each school holiday period in even numbered years commencing in 2018;

   (d)On Father’s Day weekend from after school Friday to before school Monday and the Mother’s time is suspended should it fall on a weekend with the children are ordinarily in her care;

   (e)Such other times as agreed between the parties.

   6.That the children otherwise live with the mother.

   7.That in the event the Mother and the children relocate pursuant to order 1 herein, then the parties shall do all acts and things and sign all documents necessary to cause the children to be enrolled and to commence at a school near the mother’s residence.

   8.That the Father is permitted to relocate his place of residence to the area where the children shall be residing with the mother provided that his new residence is not closer than 2 km (as the crow flies) from the Mother’s residence.

   9.For the purposes of changeover on non-school days, the following shall apply:

   (a)The Mother, or her nominee shall deliver the children to the Father, or his nominee at the Father’s residence at the commencement of time with the Father;

   (b)That the Father, or his nominee shall return the children to the Mother, or her nominee to the Mother’s residence at the conclusion of time with the Father.

   10.That each of the mother and the father are entitled to telephone the children on a Wednesday and on a Friday between 6 and 7pm when the children are not in their respective care.

   11.That each party shall facilitate a SKYPE call (if available otherwise by telephone) by the children with the other parent on a Sunday between 6PM and 7PM when the children are not in the other parents care.

   12.That the Fathers time with the children is suspended and the children shall live with the Mother as follows:

   (a)For one half of the school holiday period as agreed between the parties in the absence of agreement between the parties for the second half of each school holiday period in odd numbered years commencing in 2017 and the first half of each school holiday period in even numbered years commencing in 2018.

   (b)On Mother’s Day weekend from after school Friday until Monday before school.

   13.Unless otherwise agreed between the parties’ school holiday periods described herein shall be defined as follows:

   (a)Calculated from the day after the last day of school until and including the day immediately before school resumes.

   (b)Pupil free days, are deemed not to be school holidays.

   (c)The relevant school holiday shall commence at 12.00 NOON on the appropriate day of the child’s relevant school term and the last day of the relevant period shall conclude at 12.00 NOON on the day preceding the appropriate day of the commencement of the child’s relevant school term.

   (d)After each holiday period the children’s time with the Mother shall resume in accordance with the pattern established for the alternate weekends during the school term as if the school holiday period had not occurred.

   14.That each party is restrained from denigrating the other parent in the presence and or hearing of the children or from committing any other person from doing so.

   15.That each party shall notify the other party of any medical emergency, illness or treatment with respect to the children which occurs whilst the children are in their respective care and this order shall operate as authority to any treating practitioner to provide information or discuss the children’s care with both parents.

   16.That each of the parties shall do all acts and thing and sign all documents necessary to authorise the school to provide to the other party any authority as required by that other party to receive school reports, school photographs and information about the children’s schooling and sporting activities and this orders shall operate to authorize each parent to provide information or discuss the children’s education with both parents.

   17.That the mother and the father shall do all things necessary to facilitate the children or any of them to attend for counselling, therapy or other treatment as recommended by the children’s treating practitioners.

   18.That in the event that any practitioner/therapist considers it necessary for Mr F to participate in any treatment or therapy as requested by that practitioner/therapist working with the children or any of them, then in that event, the parties shall facilitate that participation of Mr F according to the practitioner/therapist and each of the parties shall pay a one half share of any costs of the children’s sessions and shall each bear the costs for sessions involving themselves, subject to any Medicare rebate.

7. The outstanding discrete issues for determination related to the permissible sporting activities of the children and the ICL’s application for costs.

Documents as to the discrete issue

1. The father relied upon certain parts only of his trial affidavit filed 9 January 2017.

2. The mother relied upon certain parts of her trial affidavit filed 10 January 2017.

3. Both parties gave oral evidence.

Context

1. The father is aged 43 and the mother aged 46.

2. The parties commenced cohabitation in late 2002. The mother has two children of a previous relationship who were then aged eight and six.

3. The parties separated for a period in early 2012.

4. In 2013 they separated for a period under the one roof with final separation in November 2013. The separation was conflictual as a consequence of the mother’s new relationship. The child C recalled “lots of fighting”.

5. There is no issue that at the time of separation the parties’ relationship was in conflict, so much so that the older children had counselling intervention.

6. Subsequent to separation the mother commenced a relationship with Mr F who resides in G Town in the H Region area of NSW. He has a son who presents with some concerning behavioural issues. It was the mother’s proposal to relocate with the children to G Town to reside with Mr F. That relocation did not proceed as can be seen from the final orders agreed to that permit the mother to only relocate within the Sydney Metropolitan area including the Local Government Area of B Town to the south.

7. It appears common ground that the mother will continue her relationship with Mr F as best can be facilitated whilst she remains living with the children in the Sydney area. She proposes to spend some time with him in G Town and it appears he with her in Sydney.

8. There have been significant behavioural issues in relation to the child C who was diagnosed with Oppositional Defiant Disorder in 2015 and later Attention Deficit Disorder in February 2016.

9. The mother struggles with the management of the children’s activities  during the week and on weekends as she does it without help unless Mr F is visiting her. The father has the assistance of his parents with whom he lives at present. The father clearly enjoys being engaged in the children’s sport.

10. The Single Expert Dr I (Exh “B”) noted the “persistent parental conflict and poor problem solving” and opined “Given the strong masculine approach of the father, it was unsurprising that (the mother) experienced him as a bully as he assertively pursued his agenda”.

11. Perhaps this is the case in relation to this discrete issue.

12. The Single Expert noted “the lack of respectful communication and incongruent parenting styles limiting their capacity to effectively co-parent”.

13. The children informed the Single Expert that it was good to be at home with the mother. C described the pre-separation weekends as “lots of rushing around” because of sport stating that she “didn’t get to sit down, relax or sleep in”.

14. Otherwise all the children spoke positively about their time with the father and the extended paternal family.

15. Concerningly, the Single Expert reported that “the paternal grandparents and paternal aunt …spoke in unison in their criticism of the mother, whom they viewed as self-preoccupied”.

16. The father sought orders as to the discrete issue in summary as follows:

    a)That the parties do all things necessary to cause each of the children to be engaged in one weekend team sport each season as elected by the child,

    b)That the father facilitate the attendance of the children at such weekend sport when in his care,

    c)That the mother facilitate the attendance of the children at such weekend sport each alternate weekend they are in her care (thus allowing the mother to perhaps have a weekend a month in G Town with her partner and the children),

    d)That in the event that the mother is unable to ensure the child or children’s attendance she give the father not less than 72 hours’ notice and the father shall ensure the child or children’s attendance at training or weekend sport,

    e)That in the event that the mother is unable to ensure a child or children’s attendance at weekend sport then such child or children shall spend time with the father from 7.30 pm Friday to the conclusion of weekend sport provided that the mother’s time with the children in school holidays be increased by not more than three nights for any nights thus spent with the father,

    f)That the father shall pay costs of the children’s sport registrations and uniforms. 

17. The mother proposed:

    a)That the parties consult as to the children’s sport,

    b)That the parties be at liberty to attend any of the children’s sporting events and other events including school events regardless of who they are spending time with,

    c)That the mother be permitted to enrol the children in midweek sport at times when they are with her,

    d)That the father be permitted to enrol the children in no more than one Saturday sport per term,

    e)That the father pay all costs associated with the children’s sport.

18. The Independent Children’s Lawyer proposed as to the discrete issue (Exh “L”):

    a)That the parties consult as to the children’s sporting activities,

    b)That the parties be at liberty to attend any of the children’s sporting events and other events including school events regardless of who they are spending time with,

    c)That the mother be permitted to enrol the children in midweek sport at times when they are with her and she ensure they play at least one sport each school term,

    d)That the mother is not compelled to facilitate the children’s attendance at weekend sport during her weekend time with the children,

    e)That the father pay all costs relating to the children’s sport that he enrols them in.

19. There is no issue that the older children have been involved in team and other sport over the years. C has had a particular involvement in softball and the child D in rugby league. The father complains that the since separation the mother has been obstructive in the children continuing with their sport.

20. Regrettably, the oral evidence reflected the father’s agenda as to weekend sport and his willingness to impose on the mother’s family time with the children by ensuring that she be obligated to ensure the children participate in certain activities notwithstanding that the children are in her care. The mother’s ability to do so is, in a practical sense, limited by her being solely responsible for the children’s arrangements unless on the father’s proposal he intrudes on her time by requiring the children in certain circumstances to remain with him.

21. The tenor of the mother’s evidence is that she will ensure that the children participate in sport and activities as best she can (and as she has done) but will have regard to the needs of the children and her family unit as a whole.

Parenting

1. The relevant principles in relation to parenting and interim proceedings are well settled Goode and Goode [2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.

2. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

4. Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

1. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. Final orders as to the question of parental responsibility, the children’s primary living circumstances with the mother and time with the father have been made.

2. The discrete issue falls to be determined by a consideration of the children’s best interests.

Best Interests

The Primary Considerations: s60CC (2)

1. The primary considerations are:

   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.

2. In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).

s60CC(2)(a) – “meaningful” relationship

1. In Mazorski v Albright[2007] FamCA 520; Brown J considered ordinary definitions of the term “meaningful” and observed:

   [26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

2. In McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.

3. The children will continue to enjoy a “meaningful relationship” with both parents going forward as a consequence of the final orders made by consent provided that the prospect of parental conflict and dispute as considered by the Single Expert is minimised.

4. The father’s proposal’s and the mother’s view of him regarding his “agenda” make ongoing intervention by one in the time of the other with the children problematic and conducive to engaging the children in the conflict.

5. It is appropriate that each parent be at liberty to engage the children in activities during their time with the children and not otherwise absent agreement between them. This will ensure that the children’s relationship with each parent is unfettered by ongoing conflict.

s60CC(2)(b) – need to protect

1. This factor is in itself substantially dealt with in the previous consideration. The children should as best as can be managed be isolated from any prospective conflict. The father’s proposals see him to an extent involved in the mother’s time with the children and obligating her in a way that she rightly sees as an imposition on her “family time”.

2. Such is a recipe for conflict and conflict that intimately involves the children.

The Additional Considerations:

1. S60CC(3) sets out the additional considerations:

   a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   b)the nature of the relationship of the child with:

   (i) each of the child's parents; and

   (ii) other persons (including any grandparent or other relative of the child);

   c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i) to participate in making decisions about major long-term issues in relation to the child; and

   (ii) to spend time with the child; and

   to communicate with the child;

   ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i) either of his or her parents; or

   (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   f)the capacity of:

   (i) each of the child's parents; and

   (ii) any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   h)if the child is an Aboriginal child or a Torres Strait Islander child:

   (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii) the likely impact any proposed parenting order under this Part will have on that right;

   i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   j)any family violence involving the child or a member of the child's family;

   k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i) the nature of the order;

   (ii) the circumstances in which the order was made;

   (iii) any evidence admitted in proceedings for the order;

   (iv) any findings made by the court in, or in proceedings for, the order;

   (v) any other relevant matter;

   l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   m)any other fact or circumstance that the court thinks is relevant.

2. Many of the considerations above are of no assistance in regards to this discrete issue.

3. The children, especially the older children, are keen on sport. The mother has facilitated engagement in a range of activities during her time. The father also should be able to do so. However, wishes of the children should be subordinated to the protective and relationship considerations referred to above.

4. The children enjoy a good relationship with each parent. They express an appreciation of the mother’s household post separation that is absent parental conflict.

5. The capacity of the parents to isolate the children from conflict in circumstances where the father proposes to be to some extent enmeshed in the mother’s time with the children is a concern reflected by the Single Expert and is reflected in the orders proposed by the ICL.

6. The children, especially the older children, are getting to an age where they can express a wish to both parents as to activities they undertake in each household. It should be a matter for each parent to consider their respective family circumstances and deal with those wishes appropriately without interference from the other parent or compulsion by court order.

7. In all of the circumstances it is considered for the reasons above that there should be no orders save for the right of each parent to attend on occasions significant to the welfare of the children as contemplated in part by the ICL and agreed to by both parties as during submissions it was common ground that such order was to be made by consent.

8. Orders will be made accordingly.

The ICL’s Costs

1. The ICL sought an order that the parties pay the ICL’s costs in the proceedings.

2. The proceedings for reasons not clear were not reached for hearing in the Federal Circuit Court for trial on two occasions. Leaving aside the costs of the not reached hearings it was agreed that the ICL’s costs would otherwise be in the sum of $5,161.20 for each party.

3. The father did not oppose an order that he pay that sum nor did the mother.  

4. The ICL made no submissions and did not seek to be heard in opposition to such orders. 

5. Accordingly, orders will be made for each party to pay the sum of $5,161.20 in relation to the ICL’s costs.

I certify that the preceding fifty nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 22 March 2017.

Associate: 

Date:  21 March 2017