ICARUS & ARTHUR - [2015] FamCA 1047

FAMILY COURT OF AUSTRALIA

ICARUS & ARTHUR

[2015] FamCA 1047

FAMILY LAW – CHILDREN – Where the parties reached substantial agreement as to final parenting orders save for one discreet issue – where the issue for determination is as to whether the child’s time with the father should be ten nights or eleven nights in a four week period – where the issue for determination is virtually non-justiciable – where there is an ongoing conflictual relationship between the parties – where there is a need for consistency in the arrangements to reduce possibilities for conflict – where orders made by consent as sought by the parties – where discreet issue as to the child’s time with the father determined in accordance with the mother’s proposal in the best interests of the child.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Arthur & Icarus [2010] FamCA 115
Goode and Goode (2006) FLC 93-286
MRR v GRR (2010) 240 CLR 461

APPLICANT:

Mr Icarus

RESPONDENT:

Ms Arthur

INDEPENDENT CHILDREN’S LAWYER:

S P Nasti & Co Solicitors

FILE NUMBER:

PAC

6006

2007

DATE DELIVERED:

27 November 2015

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

29, 30 June, 1 July and 30 October 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Peter Jurd Lawyer

COUNSEL FOR THE RESPONDENT:

Ms Snelling

SOLICITOR FOR THE RESPONDENT:

Benetatos White

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Cook

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

S P Nasti & Co Solicitors

Orders

That all previous parenting orders in relation to the child B born … 2005 be discharged.
That the mother and father have equal shared long term parental responsibility for the child.
That the child live with the mother.
That the child spend time with the father as agreed between the mother and father in writing with such writing to include but be not limited to SMS and email communication and in default of agreement as follows:
(a)       During school term each alternate weekend from after-school Friday until before school Wednesday with such weekends to commence on the first weekend of the school term when the child has spent the first half of the school holidays with the father and on the second weekend of school term when the child has spent the second half of the school holidays with the father;
(b)       For one half of each mid-year school holiday period being the first half in odd numbered years and the second half in even numbered years with the first half of such holiday periods to commence at 10.00am on the day after the end of school term and to conclude at noon on the Saturday of the weekend midway through the school holiday period and with the second half of such holiday periods to commence at noon on the Saturday of the weekend midway through the school holiday period and to conclude at 6.00 pm on the day prior to the resumption of school term;
(c)       For one half of the Christmas school holiday period in each year being the first half in odd numbered years and the second half in even numbered years with the first half of such holiday period to commence at 10:00 am on the day after the end of school term and to conclude at noon on the midpoint day during the school holiday period and with the second half of such holiday period to commence at noon on the midpoint day of the school holiday period and conclude at 6.00 pm on the day prior to the resumption of school term; and
(d)       From after school Friday until before school Monday on the Father’s Day weekend provided always that the child’s time with the father shall be suspended, if applicable, on the Mother’s Day weekend from after school Friday to before school Monday.
That for the purposes of the child spending time with the father changeovers which do not occur at school will take place at the McDonald’s Family Restaurant at C Town.
That the mother and father will keep each other promptly advised of all serious medical, psychological and urgent medical treatments required by the child when the child is in their respective care and authorise the treating professionals to provide all information requested by the other parent.
That the mother and father shall not denigrate the other party or any member of the other party’s household in the presence or hearing of the child and shall use their best endeavours to prevent any other person from so doing.
That the mother shall be restrained from consuming alcohol during such periods as the child is living with her.
That the father shall be restrained from using or being under the influence of any illicit substances or drugs during such periods as the child is spending time with him.
That in the event of any application for costs by the independent children’s lawyer such application be made by way of short written submissions filed and served within 28 days from this date with the mother and father to respond there to by way of short written submissions within a further 14 days thereafter.
Otherwise all applications before the Court be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Icarus & Arthur has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 6006 of 2007

Mr Icarus

Applicant

And

Ms Arthur

Respondent

REASONS FOR JUDGMENT

Context

Litigation relating to the subject child B born in 2015 has been ongoing on and off between the child’s parents since 2007.
The mother and father lived together from January 2004 until September 2007. At the time of their final separation the child was barely 18 months of age.
Initially proceedings in relation to the child were commenced in the D Town Local Court very shortly after the parties’ separation.
Final orders as to parenting were made in this Court by Stevenson J on 5 February 2010 (Arthur & Icarus [2010] FamCA 115). Those orders provided that the child was to live with the mother and spend time with the father each alternate weekend during school term from after school Friday until before school Tuesday and for one half of the school holidays.
The child presently resides with the mother in her rented home at H Town.
The child presently attends E School at Suburb F where she is in year 5.
The father resides at G Town near C Town. From the father’s residence to the child’s school at Suburb F is about 27 km. From the father’s residence to the mother’s home at H Town is about 20 km.
The father has had a colourful history, having spent significant time in custody from August 1977 to 23 August 2000 for various offences including stealing, armed robbery and escape from lawful custody. Following his release in August 2000 he has not spent any subsequent period in custody.
In about 2000 the father was the victim of a serious assault and from 2003 he has been in receipt of Commonwealth disability benefits.
There is no doubt that the mother and father have had a long-standing conflictual relationship. There is also no doubt that the child is expressing wishes to spend more time with her father.

The present proceedings

The present proceedings were commenced by the father on 5 January 2011, barely 12 months after previous final orders were made. The father’s application sought orders that provided for the mother and father to have equal shared parental responsibility for the child, for the child to live with the father and for the child to spend time with the mother.
At the time of the father commencing the proceedings he held significant concerns for the child by reason of his allegations as to the mother’s abuse of alcohol.
The mother filed a response on 22 March 2011 seeking that the father’s application be dismissed. The effect of such an order would be that the orders made by Stevenson J would continue to apply.
An independent children’s lawyer (“ICL”) was appointed to represent the interests of the child with the final parenting hearing being fixed for trial commencing 29 June 2015. The hearing proceeded over three days and on 1 July 2015 was adjourned part heard for further hearing to 30 October 2015.
On resumption of the trial the parties informed the Court that there had been substantial agreement as to final parenting orders save for one discreet issue for determination as to the child’s time with the father.
The substantial agreement between the parties, supported by the ICL was as reflected in the mother’s minute of proposed orders (Exh T) as follows:
a)That all previous parenting orders in relation to the child be discharged;
b)That the mother and father have equal shared parental responsibility for the child;
c)That the child live with the mother;
d)That the child spend time with the father as agreed between the parties in writing or in default of agreement on alternate weekend periods during school term and for half of the school holidays;
e)That the child spend the Father’s Day weekend with the father and Mother’s Day weekend with the mother; and
f)Otherwise the parties agreed on various specific issues orders.
Ultimately the disagreement between the parties was in terms of the time the child was to spend with the father on alternate weekends during school term.
The mother ultimately proposed that such weekends be from the conclusion of school on Friday to the commencement of school on Wednesday representing in a four week cycle a total of 10 nights with the father over the two weekend periods.
The father proposed that the child spend time with him on the first of such weekends from after school Friday to before school Wednesday and on the other of such weekends from after school Thursday to before school Wednesday representing in a four week cycle a total of 11 nights with the father over the two weekend periods.
Neither party would compromise on a resolution and required a judicial determination. In reality having regard to the overwhelmingly substantial agreement between the parties as to the parenting orders to be made the issue for resolution is virtually “non-justiciable”.
The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286. The High Court in MRR v GRR (2010) 240 CLR 461 affirmed the legislative pathway
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.
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.
Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
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. The parties have agreed that such an order should be made.
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
The parties have agreed that there will not be an order for equal time. The substance of the parties’ agreement will implement an arrangement whereby the child will have substantial and significant time with each parent.
In a perfect world the Court would be able to have regard to the best interests considerations set out in s 60CC of the Act in order to resolve the conflict between the parties as to appropriate parenting orders for the child, in particular the child’s time with the father. Regard has been had to both the primary considerations and the additional considerations and in the context of the present dispute none are indicative of being any assistance in clearly resolving same.
The child has clearly expressed wishes to spend more time with the father and that is to be facilitated by reason of the substantial agreement reached between the parties.
The parties are clearly in a conflictual relationship and any uncertainty as to the operation of orders would inexorably by reason of the history between them lead to further conflict.
It is readily apparent that absent Court orders neither party has the capacity or willingness to promote the child’s relationship with the other.
In, albeit brief, submissions in relation to the ambit of the dispute between the parties, the father contended that his position was reflective of the child’s wish to spend more time with him.
The mother contended that the child needed certainty as to her periods of time with the father in that they are consistent and lead to no possible issues as to their implementation. It was contended that by reason of the parties’ lack of ability to act co-operatively and to communicate in relation to the child’s circumstances that consistent block periods should be provided for. Otherwise it was submitted the father’s position was more focused on his own needs rather than those of the child. The current orders commence on a Friday after school and it was contended on behalf of the mother there was no good reason why that should be changed.
Ultimately the ICL was ambivalent about each of the parties’ position taking the view that the child by reason of her wishes, her age and her intellectual capacity would not be confused by a disparity arrangement for each alternate weekend period.
However there are reservations clearly in terms of the ongoing conflict between these parents and overall it is considered that it is in the best interests of the child for there to be clear consistency in relation to her parenting arrangements.
As to the discrete issue for determination orders will be made as sought by the mother.
Otherwise orders will be made in terms of the parties’ agreement.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 27 November 2015.

Associate:

Date: 27 November 2015