HUMPHREY & HUMPHREY
[2013] FMCAfam 199
•6 March 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HUMPHREY & HUMPHREY | [2013] FMCAfam 199 |
| FAMILY LAW – Children – parenting orders – interim orders – best interests of the child – parental responsibility – equal shared parental responsibility – daughter aged 14 years and 7 months – views of the child considered. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA |
| Goode v Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 Rice v Asplund (1979) FLC 90-725 |
| Applicant: | MR HUMPHREY |
| Respondent: | MS HUMPHREY |
| File Number: | SYC 6843 of 2012 |
| Judgment of: | Scarlett FM |
| Hearing date: | 4 March 2013 |
| Date of Last Submission: | 4 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 6 March 2013 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Carter |
| Solicitors for the Applicant: | Gelonesi Parasyn Solicitors |
| Solicitor for the Respondent: | Mr McDonald |
| Solicitors for the Respondent: | G & D Lawyers |
ORDERS
UNTIL FURTHER ORDER
All earlier parenting Orders in respect of the child [X] born [in] 1998 are discharged.
The parties are to have equal shared parental responsibility for the child [X].
The child [X] is to live with the Respondent Mother.
The child [X] is to spend time with the Applicant Father on the following days and times:
(a)Each Wednesday during the school term from immediately after school until 6:30pm;
(b)Each alternate weekend during the school term EXCEPT the weekend during which Mother’s Day falls AND being the same weekend that the child [Y] born [in] 2000 would normally be in the care of the father from immediately after school on Friday until 5:00pm on the Sunday;
(c)From immediately after school on Thursday 28 March 2013 until 5:00pm on Easter Saturday 30 March 2013;
(d)On the child’s birthday from immediately after school until 6:30pm;
(e)On the Father’s birthday from immediately after school until 6:30pm;
(f)On the weekend during which Father’s Day falls from immediately after school on the Friday until 5:00pm on the Sunday;
(g)For the first half of each of the Autumn, Winter and Spring school holidays commencing at 9:00am on the Saturday immediately after the last day of the school term and concluding at 5:00pm on the middle Saturday of the school holiday period; and
(h)From 2:00pm on Christmas Day until 5:00pm on Boxing Day 2013.
For the purposes of Orders (4)(a), (d) and (e) the Father will collect the child [X] from school and return her to the Mother’s residence.
For the purposes of Orders (4)(b),(c) and (f) the Father will collect the child [X] from school and the Mother will collect the child from the bus stop nearest the Father’s residence.
For the purposes of Orders (4)(g) and (h) the Father will collect the child from immediately outside the Mother’s residence and return the child to the Mother’s residence.
The Father must permit [X] to telephone the Mother at any time when the child is in his care in accordance with these Orders.
The Mother is permitted to telephone [X] on one occasion on each day when the child is in the care of the Father.
Both parties are restrained from:
(a)Denigrating or criticising the other party in the presence or hearing of the child;
(b)Discussing these proceedings with the child or in the presence of the child;
(c)Showing to the child any documents connected with these proceedings; or
(d)Showing to the child or permitting the child to read any communication whether written or electronic from the other party.
IT IS NOTED that publication of this judgment under the pseudonym Humphrey & Humphrey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 6843 of 2012
| MR HUMPHREY |
Applicant
And
| MS HUMPHREY |
Respondent
REASONS FOR JUDGMENT
Application
The parties are at issue about arrangements for their teenage daughter [X] to spend time with her father on a regular basis. This is so, notwithstanding the fact that [X] and her younger brother [Y] recently took part in a Child Inclusive Child Dispute Conference and expressed some clear views about what they would like to happen.
The situation is complicated by the fact that [X] lives primarily with her mother and [Y] lives with his father and mother on a week about basis.
Background
The parties were married [in] 1992 and separated in September 2008.
There are two children of the marriage:
a)their daughter [X], who was born [in] 1998; and
b)their son [Y], who was born [in] 2000.
It is not in issue that the relationship between the parties has been acrimonious since the separation and they have not agreed on a number of issues regarding their children. However, since these proceedings were commenced, the parties have been able to agree to two separate sets of interim parenting orders that have covered some of the more pressing matters regarding their children.
The Father commenced proceedings by filing an Application for parenting orders and a very lengthy affidavit annexing a plethora of emails between the parties. The Application was returnable on 17th December 2012, on which date the parties were directed to attend a Child Dispute Conference with a Family Consultant.
The Application was adjourned to 19th December for mention, when the parties entered into two separate sets of interim Consent Orders.
The principal interim Consent Orders provided that:
a)The parties would have equal shared parental responsibility for the children;
b)The children would spend agreed times with each parent over the Christmas period;
c)Changeover would occur at school or at the residence of the parent with whom the children were spending time;
d)The parties were restrained from denigrating each other in the children’s presence or hearing;
e)Communication between the parties should be by email except in cases of emergency;
f)The parties were restrained from forwarding their emails to the children;
g)The parties would each attend a parenting after separation course;
h)Each party would allow the children to telephone the other;
i)The parties were to be restricted to telephoning the children twice a day when the children were in the other party’s care; and
j)The parties would give the children privacy when they were talking to the other party on the telephone.
The other set of interim Consent Orders provided that:
a)Their son [Y] would spend certain specified times with the father during the Christmas/January school holidays and would then live with each parent for alternate weeks on a week about basis during the school term;
b)Their daughter [X] would live with the mother and spend certain specified times with the father during the Christmas/January school holidays and then spend two consecutive Sundays with her father in February;
c)The Mother was limited in the number of telephone calls she was to make to the children whilst in the Father’s care; and
d)The parties were restrained from confiscating the children’s mobile telephones or otherwise making them unusable whilst the children were in their care.
In her Family Consultant Memorandum to Court of 17th December 2012, the Family Consultant recommended that the parties and the children should attend a Child Inclusive Child Dispute Conference. An Order was made to that effect on 19th December.
The parties and the children attended the Child Inclusive Child Dispute Conference on 14th February 2013. The Family Consultant Memorandum was released to the parties but, when the matter was back before the Court on 4th March the parties were unable to agree to any ongoing parenting Orders in respect of [X].
The Parties’ Proposals
At the request of the Court, the parties’ solicitors prepared Minutes setting out the interim orders that their respective clients sought in respect of [X].
The Father proposes that:
a)The parties should have equal shared parental responsibility for both children;
b)[X] should live with the Mother;
c)[X] should spend time with her father:
i)each alternate weekend from 3:30pm Friday to 9:00am on Monday;
ii)each alternate Wednesday from 3:30pm until 6:30pm; and
iii)the Father to collect [X] from school and return her to her mother’s residence.
The Mother, to her credit, instructed her solicitor to agree with the Father’s proposal that [X] could be returned to her at 6:30pm rather than 6:00pm.
The Mother’s proposal is that:
a)[X] should spend time with her father:
i)each Wednesday from after school until (now) 6:30pm;
ii)each alternate weekend from 3:30pm on Saturday until 5:00pm on Sunday;
b)the Father should collect [X] from school on Wednesday afternoons and return her to her mother’s residence;
c)changeover in respect of [Y] should take place at 5:00pm on Sunday (rather then the current arrangement, which specifies Mondays); and
d)the Mother would collect the children from the Father by meeting them at the bus stop nearest the father’s residence.
The Family Consultant Memorandum
After the parents and children had attended the Child Inclusive Child Dispute Conference on 14th February, the Family Consultant prepared a detailed and useful Memorandum for the Court. Copies were released to the parties.
The Memorandum sets out [X]’s wishes very clearly:
· [X] said that she wants to live with her mother and spend time with her father because she likes to have her things in the one place and to have a primary residence. However, she said that she is worried about hurting her father and she said that she loves both of her parents and speaks to both of them about any worries she may have. [X] said that she wants to see her father each week for coffee or a meal and to spend time overnight at his home on a couple of weekends or for a minimum of at least four nights each month as well (as) shared school holidays. She would like this to be flexible, in order to continue to participate in extended family functions, and is concerned that her mother may be reluctant to agree to her going to her father at times…
· [X] said that, when she first moved to live with her mother, she missed her brother and said that she worries about him because he is now a little overweight and continues to have some angry outbursts, mainly when with their mother
· [X] said that she does not want her parents to make negative comments about each other. She wishes that everyone in her family and would be able to get along with each other and that each parent would be happy by himself or herself when the children are not with them.[1]
[1] Family Consultant Memorandum to Court 14 February 2013
The Law to be Applied in Parenting Applications
When the Court is deciding whether to make a parenting order, it is required by s.60CA of the Family Law Act to regard the best interests of the child as the paramount consideration. The Court determines what is in a child’s best interests by considering the matters set out in subsections (2) and (3) of s.60CC of the Act.
Section 61DA requires the Court, when making a parenting order, to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in cases of abuse or family violence and may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests to apply the presumption.
The presumption applies when the Court is making an interim order unless it would not be appropriate to do so.
If the Court does make a parenting order providing for a child’s parents to have equal shared parental responsibility, the Court is required by subsection 65DAA(1) to consider whether the child spending equal time with each parent would be both in the best interests of the child and reasonably practicable.
If the Court does not make an equal time order, it is required by subsection 65DAA(2) to consider whether it would be both in the child’s best interests and reasonably practicable to spend substantial and significant time with each parent.
All of the above matters have been considered in this decision.
Conclusions
Whilst these proceedings primarily concern [X], the Mother has sought to vary the Consent Orders made on 19th December by changing the changeover time for [Y] from Monday to Sunday at 5:00pm. There is no evidence of any change of circumstances that would warrant any change to a parenting order entered into by consent only eleven weeks earlier and this Order will not be varied (see Rice v Asplund[2]).
[2] (1979) FLC 90-725
Consequently, Orders will be made relating to [X] only. However, it is not satisfactory for there to be an additional set of Orders relating to this child, as there are already two separate sets of Consent Orders in existence. There should be one set of interim parenting Orders in existence in relation to this child to avoid confusion and, as a consequence, the earlier Orders will be discharged insofar as they refer to [X].
It is appropriate to apply the presumption that it is in [X]’s best interests for her parents to have equal shared parental responsibility, for these reasons:
a)These are interim proceedings and there is no evidence of abuse or family violence;
b)There is no evidence and it has not been argued that it would not be in the [X]’s best interests to apply the presumption;
c)The parties have previously consented to an order for equal shared parental responsibility for both children; and
d)The Father has specifically sought an order that the parties have equal shared parental responsibility for both children.
It has not been argued that [X] should spend an equal amount of time with each parent. There is evidence from the Family Consultant that [X] wishes to live with her mother and spend time with her father. I am not satisfied that it is in her best interests to spend equal time with each parent.
I am satisfied that it is in [X]’s best interests to spend substantial and significant time with her father. There is evidence that it is of benefit to her to have a meaningful relationship with both of her parents. She loves both her parents.
It has not been argued that there is any need for an order to protect [X] from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. For that matter, there are no allegations of family violence and there is no family violence order in place (see s.60CC(3)(j) and (k)).
It is particularly relevant to consider the views of the child, as they emerge very clearly from the Family Consultant Memorandum of 14th February. Paragraph 60CC(3)(a) set out as a consideration:
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.
[X] was born [in] 1998. She is 14 years and 7 months old. She was described by the Family Consultant as “an open, thoughtful and friendly young person” and one who “appeared able to analyse her situation in more detail” than her younger brother.[3]
[3] Family Consultant Memorandum to Court 14 February 2013 page 2
In my view, [X] is of an age and level of maturity that justifies the Court in giving her views a significant amount of weight.
[X] appears from the Family Consultant Memorandum to have a positive and loving relationship with each parent although, disturbingly, she “is concerned that her mother may be reluctant to agree to her going to her father at times”.[4] She also appears to have a good relationship with her brother and has said that she worries about him at times.
[4] Ibid
Each parent wants to spend time with [X] and participate in making decisions about her.
It is a matter of some concern that each parent has come up with a proposal about the Father’s time with [X] that differs significantly from what the child has articulated as her wishes. These are proceedings for interim Orders where no oral evidence has been taken from the parties. Thus, it is not possible to make findings of fact or deal with “matters relating to the merits of the substantive case”[5]. That said, the parties’ proposals vary so far from what [X] wishes that, at a final hearing, they might well be asked in cross-examination whether they are listening to their child or more concerned with their own long-standing differences.
[5] See Goode v Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 at [68]
The Court cannot make any finding of fact about that question without the parties’ evidence being tested by cross-examination. However, it is clear from the Family Consultant Memorandum that [X] would like to see her father every week, even if it is only for a meal or a cup of coffee, yet his proposal is that he should spend time with her only on alternate Wednesdays and alternate weekends. [X] said she would like to spend overnight time “or for a minimum of at least four nights each month”[6], but the Father proposes alternate weekends of three nights each and the Mother proposes alternate weekends of only one night each time from Saturday afternoon till Sunday afternoon, some twenty-five and a half hours, including time when the child is asleep.
[6] Family Consultant Memorandum page 2
Neither party has provided reasons why their particular proposals would be in [X]’s best interests. Neither party has come up with any proposal for the mid-year school holidays, or for special occasions such as Mother’s Day (the second Sunday in May), Father’s Day (the first Sunday in September), the child’s birthday ([date omitted], a school day) or the Father’s birthday ([date omitted], also a school day).
It is a matter of general knowledge that birthdays, Mother’s Day and Father’s Day are usually matters of particular significance to children and of special significance to their parents (see s.65DAA(3)).
It is also noteworthy that [X] and her brother appear to be well aware of the ongoing differences between their parents. [X] told the Family Consultant that she does not want her parents to make negative comments about each other. It would appear to be in [X]’s best interests for her parents to refrain from making such comments to or about each other, at least when she or her brother are in the vicinity.
[X] is also of an age where she needs to have a set of parenting orders which provide a regime with which she feels comfortable, rather than one which reflects the views of one parent in respect of the other.
The Court is not bound to follow the proposal of either party in making parenting orders. The best wishes of the child remain the Court’s paramount consideration and these Orders have been crafted with [X]’s best interests in mind.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 8 March 2013