Jarvis and Weston

[2007] FamCA 1339

FAMILY COURT OF AUSTRALIA

JARVIS & WESTON [2007] FamCA 1339

FAMILY LAW – CHILDREN – agreement 11 year old son now to live predominantly with mother – decisions required about when the change in the child’s arrangements would commence [now or beginning of 2008 school year], which school he would attend, and the time he would spend with father during school terms – After decisions made issue arose about delivery of the child’s dog [stay with father or go to mother’s] and issue raised in passing about the court’s jurisdiction to make order about the dog 

Family Law Act 1975 (Cth)

APPLICANT: Ms Jarvis

RESPONDENT: Mr Weston

FILE NUMBER: SYF 624 of 2001

DATE DELIVERED: 1 November 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Justice Moore

HEARING DATE: 11 December 2006, 19 January, 12 October, 31 October & 1 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Nelson

SOLICITOR FOR THE APPLICANT: Scanlan’s Lawyers

SOLICITOR FOR THE RESPONDENT: Mr Cumming appeared as agent for Selman Jowett Solicitors

Orders

1.Orders are made according to the document headed ‘Minute of Orders’ paragraphs 1-15 inclusive dated 1 November 2007. 

IT IS NOTED that publication of this judgment under the pseudonym Jarvis & Weston is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:   SYF624 of 2001

MS JARVIS

Applicant

And

MR WESTON

Respondent

REASONS FOR JUDGMENT

1. The parents agreed about certain aspects of the future living arrangements for their son, aged 11, but there remained several areas of dispute.  In summary, they were these:

   (i)whether the agreement that he will now live primarily with his mother rather than his father should be implemented now or at the beginning of the 2008 school year; and

   (ii)whether he should attend school from then in C near to the mother’s home or in G where the father works;

   (iii)     if he attends school in C -

   ·    his mother proposes he spend Friday 5pm to Monday before school every second weekend with his father, to be collected by his father from a venue in C and returned to school on Monday morning;

   ·    his father proposes he spend from Thursday 5pm to Monday before school two weeks out of three with him, to be collected by him from a venue in C and returned to school on Monday morning;

   (iv)     if he attends school in G –

   ·his mother proposes the same arrangement;

   ·his father proposes he spend every second week with him from after school Wednesday to before school Monday. 

2. After some brief evidence and submissions from their legal representatives, I determined that the child’s arrangements would be implemented now and not delayed, that he would attend the C school, and he would spend every second weekend with his father from Friday after school until Monday before school.  Reasons for these decisions, which need not be extensive given the scope of the submissions, follow. 

Background

1. Ms Jarvis (40) and Mr Weston (52) began living together in 1992, their only child, a son, was born on … May 1996, they married in November 1996, and they separated in July 2000 while living at V. 

2. There is a history of court proceedings stretching back to 2001, not only in this Court but also in the Local Court, which determined from time to time the child’s time between his parents, amongst other things.  But it will suffice to say now that for the past several years the child has lived with his father and during school terms he has spent three weekends out of four with his mother [Friday afternoon to Sunday afternoon] as well as block periods during school holidays.  These arrangements have been implemented, at least during school terms, by his mother collecting him from school on Friday afternoons and his father collecting him from C Post Office on Sundays. 

3. The relationship between the parents is fraught with conflict and there is no doubting the change from the care of one to the other when contact between them has been necessary is a tense and anxious event for their son. 

4. The mother lives at near C, with her partner, Mr H, who is a farmer.  She has a son, R (16), from a previous relationship and she and Mr H have a son, N (2).  She is not in paid work but is undertaking a TAFE course in G which she anticipates will continue for another couple of years. 

5. The father lives at V.  He has not re-partnered.  He works full time in the public service operating out of premises in G although the area he covers is wide and includes the Southern Highlands.  He has some flexibility in his work arrangements so that he can plan to be in G on occasions rather than further afield out in the area of his responsibility. 

6. The drive from G to C takes around 45 minutes (father) or longer (mother) and the drive to her residence on the other side of C takes a further 10 – 15 minutes or thereabouts.  The drive from V to G takes about 45 minutes (mother) or 55 minutes (father).  The upshot is that the drive from V through G to C is a journey of 1 ¾ to 2 hours. 

Timing

1. A Family Report was prepared initially from interviews conducted in late March this year.  There was an order made for an update to be prepared in preparation for the hearing in light of argument about changes in the child’s wishes over the intervening months. A reading of those reports points unequivocally in the direction of implementing the new arrangements without further delay so as to release the child from the palpable anxiety of being caught between his parents in their conflict centred on all manner of facets related to his care.  The damage to the child of this acrimony and finger pointing is clear from the reports and the sooner the arrangements are implement the better chance he has of getting out from under the burden and distress and sense of responsibility he feels for the seemingly endless maelstrom going on around him.  Being settled is a major need for him at this stage and there is no sound reason whatever not to implement forthwith what has been agreed and ordered so that he might get on with making whatever adjustment may be necessary to his new setting and routine. 

2. In saying that I am mindful of the father’s resistance to it and his proposal to defer introducing the change in arrangements until the beginning of next year.  True it is that the child will have to change schools with only some 6 or 7 weeks until the end of term, but in my assessment that disruption is a relatively minor consideration compared to the potentially unsettling consequences of not making the move now and thus leaving him, in all likelihood, with a sense that nothing has changed. 

School

1. The father and Mr Cumming said all that was possible in putting the argument for the child’s attendance at school in G, but the weight in favour of C is overwhelming.  His mother’s home, from where he will be going to school most of days on any view of how his time will be apportioned between his parents, is 10 – 15 minutes from the C school.  He has another year at primary school and then a number of years at secondary school still ahead of him.  To commit him over these many years to travelling by two busses for over an hour in the morning and again in the afternoon to go to and from school in G is unwarranted, more so in the absence of any suggestion that the schools at C, primary and secondary, are not equipped in some measure to meet his educational needs. 

2. That his father works out of G is acknowledged and the ease and convenience that provides of collecting the child from school and returning him to school in G is obvious.  But it would fall to the child to wear the consequence: travel for at least two hours via two busses to get to and from school each school day, save for those days he was to be collected or returned to school by his father.  The burden this represents for him vastly outstrips the ease and convenience factor that would obviously accrue to his father. 

Time

1. The decision about the child’s time, as with the other decisions just discussed, must have his best interests as the paramount consideration.  Section 60CC of the Act lists those matters, primary and additional considerations, which must be taken into account in determining best interests.  To some extent many of those factors fall away from active consideration because of the agreement that the child will now spend more time with his mother than with his father, at least during school terms, though of course in as much as there is evidence, albeit untested, regard is had to it. 

2. More particularly for present purposes, the child’s views are set out in the earlier report and they are the subject of the more recent report.  The reporter’s description of the child at this point as burdened and troubled, appearing cautious not to be seen as making a choice but also extremely emotionally fragile, is poignant.  It is regrettable that a further meeting with the reporter became necessary, but it was so as to limit the scope for foreshadowed argument about the change in the child’s views since the earlier report.  The child is attached to both of his parents and his relationship with each is close.  What changes, if any, the future will bring to the state of his relationship with each of his parents remains to be seen if the acrimony between them continues.  Both parents can be taken to have provided for him and each can be taken to have the capacity to adequately meet his needs, subject to the significant shortcoming of their failure to address their own role in exposing their son to their conflicted relationship and their apparently diminished appreciation of the extremely detrimental impact that has had on the child, as discussed by the reporter. 

3. Mr Cumming pointed out in his submissions, having regard to the child’s attendance at C school, a number of relevant considerations and benefits the child might derive from adoption of his father’s proposal for extended time to commence Thursdays for two weekends out of three.  The submissions acknowledge the extra travel involved for the child to go between C and V, but it is pointed out that he is now 11, he is getting older and the situation [travel] is not unknown to him.  It is said that such an arrangement would enable the child to continue as much as possible with Rugby Union, which he has the ambition to play at a representative level, and maintain his involvement with other activities such as touch football as well as keep contact with his friends.  Primary amongst the considerations, however, is the opportunity to spend more time with his father.  It is also pointed out that the father’s proposal is bolstered by the reporter’s recommendation in the first report that the child spends ‘no less than’ alternate weekends and half the school holidays with his father. 

4. The opportunity for a child to spend time with the parent with whom that child does not primarily live is particularly important, as the whole thrust of the provisions of Part VII of the Act post 1 July 2006 make apparent.  The primary consideration of the benefit to the child having a meaningful relationship with both parents underscores that and due regard is had to it here. 

5. In this case it is also necessary to consider the likely effect of any changes in the child’s circumstances including the likely effect of any separation from either parent [s60CC(3)(d)].  The changes to the child’s circumstances agreed by the parents will inevitably mean he will spend less time with his father, whatever time proposal is adopted.  It is very likely that will have an effect on the child, to which he will have to adjust; nonetheless, the evidence more particularly from the reporter points solidly in the direction of the child making that transition and adjustment. 

6. It is also necessary to consider the practical difficulty for a child of spending time with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis [s60CC(3)(e) – see also 65DAA(5)]. It has to be recognised that the distance and road travel involved for the child between V and C to get to and from school represent a real and practical difficulty with the adoption of the father’s proposal.  It is in the child’s interests to be spending regular time with his father, but it is not in his interests to be undertaking the extent of road travel involved as frequently as his father proposes. When his interests are weighed in the balance overall, the burden of such frequent travel on school days cannot be diminished.  That fact, as well as the child’s need also to spend leisure time in his mother’s household, compels the adoption of the mother’s proposal as being more consistent with his best interests overall.  That means the child will spend with his father three nights in every fourteen during school terms and half of his school holidays.  His father will collect him from school on those Friday afternoons and return him to school on Monday mornings, thus eliminating the need to expose him to any contact between his parents, at least during school terms.  The changeover of his care will occur beyond the school environment on occasions to implement the school holiday arrangements but that will be for the parents to manage in the future in light of what they now know of the impact on the child of those occasions.  The arrangement adopted will provide substantial and significant time as defined in s65DAA(3) for the child in his father’s care and that is the arrangement better suited to his needs and best interests. 

7. Orders have been drafted by the legal representatives to reflect the agreed arrangements and these decisions are incorporated into the draft Minute of Orders. 

8. There then arose this afternoon a further dispute that had not been previously aired. It is about the child’s dog. It was the subject of discussion between the child and the reporter, as set out in paragraph 33 of her report:

   ‘One concern expressed by [the child] was in respect of his dog.  He mentioned that his dog is locked in a cage and he is afraid about his dog’s safety should he live with his mother.  He is of the opinion that his father “does not take good care of it” and does not exercise it enough.  [The child] stated that he feared that, unless the dog was “allowed to run free now and then” he would become vicious and might bite.  [The child] mentioned that all of the pets he has had in the past have died and he was afraid a similar fate might beset his dog.’

9. The mother proposes the dog be collected from the father according to arrangements set out at paragraph 14 of the Minute of Orders.  Mr Cumming on behalf of the father made submissions resisting the making of any such order, pointing out the issue had not been raised previously, the father wanted more time to reflect on it, and in any event the Court has no jurisdiction to make any order about the dog. 

10. As I said to Mr Cumming when ruling on the issue, the matter will conclude today rather than abide the further reflection of his client and his passing reference to the absence of jurisdiction may be right.  But whether the issue falls to be considered under the accrued, associated, inherent, or parens patriae jurisdiction of the Court it can be found should the need arise.  The boy is attached to the dog.  The dog is to go with the boy. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate

Date: 1 November 2007