Jorkins and Jorkins
[2010] FMCAfam 1085
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JORKINS & JORKINS | [2010] FMCAfam 1085 |
| FAMILY LAW – Parenting – interim – equal time or substantial and significant time – Part VII, Family Law Act 1975 – s.60CC primary and additional considerations. |
| Family Law Act 1975, ss.60CA, 60CC, 65DAA |
| Goode & Goode (2006) FLC 93-286 |
| Applicant: | MR JORKINS |
| Respondent: | MS JORKINS |
| File Number: | SYC 4911 of 2010 |
| Judgment of: | Monahan FM |
| Hearing date: | 11 August 2010 |
| Date of Last Submission: | 11 August 2010 |
| Delivered at: | Sydney |
| Delivered on: | 11 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Dura |
| Solicitors for the Applicant: | Barkus Doolan Kelly |
| Counsel for the Respondent: | Ms Falloon |
| Solicitors for the Respondent: | Best Wilson Family Law |
ORDERS
All extant applications be adjourned to this Court on 30 November 2010 at 10:00am for interim hearing (“the interim hearing”) with an estimated duration of no more than two (2) hours.
All extant applications be adjourned to this Court on 17 March 2011 at 10:00am for final hearing (“the Final Hearing”) with an estimated duration of two (2) days.
In the event of any applicable filing, setting down, hearing, mediation or enforcement fee or fees (“the fees”) not having been waived, the party responsible for the payment of the fees or any of them pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Magistrates Court Regulations 2000.
Pursuant to s.11F of the Family Law Act 1975 (“the Act”), the parties attend a Child Dispute Conference with a Family Consultant in this Registry today and, pursuant to s.11C the Act, such conference be reportable.
Pursuant to s.62G(2) of the Act, the parties and [X] born in 2008 (“the child”) attend upon a Family Consultant nominated by the parties, to be paid for at first instance by the Applicant and the Respondent in equal shares, for the purposes of the preparation of a Family Report to be given to the Court no less than seven (7) days prior to the interim hearing. AND FURTHER:
(a)The Family Report address the issues in this dispute relevant to ss.60cc, 61da and 65daa of the Act and any other matters that the Family Consultant considers important to the welfare or best interests of the child;
(b)The parties comply with all reasonable directions and requests of the Family Consultant;
(c)The legal representatives for each of the parties deliver to the Family Consultant copies of all relevant applications, responses and affidavits and Court orders filed by, or on behalf of, the parties in the proceedings AND copies of any intervention or restraining orders currently in force;
(d)The Applicant and Respondent’s legal representative confirm with Family Consultant no later than seven (7) days prior to the scheduled interviews that the interviews will proceed on the dates allocated.
AND THE COURT ORDERS UNTIL FURTHER ORDER THAT:
The child live with the Respondent.
The child spend time with the Applicant as follows:
(a)In the first week, from 4:00pm Thursday until 4:00pm Sunday;
(b)In the second week, from 10:00am Wednesday until 4:00pm Friday; and
(c)Any other time as agreed between the parties.
AND THE COURT ORDERS UNTIL FURTHER ORDER, BY CONSENT, THAT:
Except as other wise stated, the Applicant and Respondent have equal shared parental responsibility for the major long-term issues of the child, including but not limited to:
(a)the school and day-care centres that the child attends;
(b)medical issues;
(c)significant milestones; and
(d)proposed holidays.
Each party consult the other about all decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree; and
(c)They shall make a genuine effort to come to a joint decision.
Notwithstanding the paragraph 8 herein:
(a)The Respondent shall be responsible for the daily care, welfare and development of the child when he is living with or spending time with her; and
(b)The Applicant shall be responsible for the daily care, welfare and development of the child when he is living with or spending time with him.
The Applicant and Respondent shall:
(a)Keep the other party informed at all times of their residential address, email address, landline and mobile contact telephone numbers;
(b)Keep the other party informed of the names and addresses of any treating medical or other health practitioners who treat the child and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child;
(c)Inform the other party as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child. This paragraph authorises any treating medical practitioner to release the child’s medical information to either party; and
(d)Communicate with the other party in writing, including but not limited to communicating via email, if discussing or reaching an agreement regarding the interpretation or implementation of the Orders.
Both parties authorise the schools or day-care centres attended by the child to give each party information about the child’s educational progress and other school-related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child at that party’s cost.
During the time the child is with either party, that party shall:
(a)Respect the privacy of the other party and not question the child about the personal life of the other party;
(b)Speak of the other party respectfully; and
(c)Not denigrate or insult the other party in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
Until the commencement of the child’s preparatory year, each party shall be at liberty to nominate, on the giving of thirty (30) days written notice, a period of seven (7) days (of up to four (4) non-consecutive occasions in a one-year period) in which to enjoy holiday time with the child, on the basis that said time not coincide with any special occasions pursuant to paragraph 12 herein.
For the purposes of special occasions:
(a)If the child is otherwise spending time with the Respondent, the child spend time with The Applicant on Father’s Day weekend from 3:00pm Wednesday until 3:00pm Sunday; and
(b)If the child is to spend time with the Applicant pursuant to paragraph 6 herein on Mother’s Day weekend, that time be suspended and the child remain in the Respondent’s care.
Except with the express written agreement from the Applicant, the Respondent cannot relocate either herself or the child from her current residential address in Suburb B, QUEENSLAND.
For the purposes of these Orders, especially but not limited to paragraphs 7, 14 and 15 herein, changeovers shall occur at Meeting Place A, Suburb A
AND THE COURT NOTES THAT:
(A)Trial directions for the Final Hearing shall be made by the Court at the interim hearing.
(B)Pursuant to ss.65DA(2) and 62B of the Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Jorkins & Jorkins is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4911 of 2010
| MR JORKINS |
Applicant
And
| MS JORKINS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by MR JORKINS (“the father”) against
MS JORKINS (“the mother”). The substantive application by the father seeks various parenting orders in relation to the child of the relationship [X] born in 2008 (“[X]”). The father’s application is opposed by the mother.
Earlier today I indicated to the parties that I had formed the view that their dispute might benefit from a child dispute conference. Consequently, a child dispute conference, pursuant to s.11F of the Family Law Act 1975 (“the Act”), was held and the parties consulted with Ms T (“the Family Consultant”). The Family Consultant subsequently provided the Court with a memorandum which I released to the parties this afternoon. Given the lateness of the hour, I will not read the relevant parts of the memorandum into the transcript. Suffice to say the family consultant identified a number of issues that were in dispute or impeding resolution of the dispute between the parties.
When the matter came before me again late this afternoon, I indicated to the parties that I had formed the preliminary view that the matter might benefit from what could be described as a “two-stage process”. That is, that the interim issues between the parties be reconsidered by the Court following the release of a family report. Subsequently, the parties advised me that they considered such appropriate in their dispute and, by agreement, they have agreed to an order today to obtain a family report on a private basis, with a view of it having released by November this year.
Given this agreement, I propose this evening to list the matter for a further interim hearing on 30 November 2010. The parties also requested that the matter be listed for final hearing. As such with an estimate of two hearing days the matter is listed for final hearing on
17 and 19 March 2011.
The parties have also agreed that until further order, there be orders today that:
a)each party have equal shared parental responsibility for [X];
b)unless otherwise agreed, the mother be restrained from changing her residence, or the residence of [X] whilst he is in her care, from her sister’s property at Suburb B, Queensland (approximately 130 kilometres from Suburb A and about 230 kilometres from the father’s rural property); and
c)the changeovers in respect of their care of [X] will be at Meeting Place A, Suburb A
The parties remain in dispute however, as to the times that [X] should live with or spend time with the other.
Proposals
The father proposes that [X] lives with him in a fortnightly cycle as follows:
a)For two consecutive nights in the first week being from Wednesday 5:00pm until the following Friday at 5:00pm; and
b)For five consecutive nights in the alternative week being from 5:00pm Wednesday until 5:00pm the following Monday;
a total of seven nights over a fortnightly period.
The mother proposes that the child spend time with the father in what could be best described as a “4:10” arrangement or four nights over a fortnightly period as follows:
a)For three consecutive nights in the first week being from 3:00pm Thursday until 3:00pm the following Sunday; and
b)For one night in the alternative week being from 9:00am Thursday until 5:00pm the following Friday.
Each party’s counsel provided the Court with brief submissions to support their respective client’s proposal. Given the lateness of the hour, I won’t reiterate those into the transcript.
The law
The Full Court decision of Goode & Goode (2006) FLC 93-286 (“Goode”) guides this Court’s approach in making interim decisions and interim orders in relation to parenting disputes. At this point I will note paragraph 81 of that decision, where the Full Court stated:
“In making interim decisions, the Court will often be faced with conflicting facts, little helpful evidence in disputes between parents as to what constitutes the best interests of the child.”
This raises the reality that the Court cannot fully determine issues of credit today, as the evidence being presented by the parties and the further submissions made is not being tested with the benefit of cross-examination. Nevertheless, the decision of Goode reminds this Court that the legislative pathway must be followed and as such the relevant provisions of the Act, post the 2006 shared parenting amendments, must be followed.
At this point, let me note that the parties have agreed on many things today and that is to their credit. One issue that is not in dispute is the issue of equal shared parental responsibility. That, however, raises an issue for me to consider in a moment. The dispute that the parties essentially have today is the issue of [X]’s time with each of the parents and under what circumstances that time should be spent.
At this point, let me note that I am not satisfied that the presumption of equal shared parental responsibility is not to be rebutted. Consequently, the Court is required under s.65DAA of the Act to consider whether [X]’s best interests would be served by an order that he spends equal time or, alternatively, substantial and significant time with either of the parties. Either outcome requires the Court to consider whether [X] spending equal time or substantial and significant time in lieu with each of the parties would be in his best interest and reasonably practicable given their circumstances.
At this point, I would also note in particular, s.65DAA of the Act and the intention behind it, being that a child should, where possible, spend times with parents that:
a)fall on weekends and holidays;
b)fall on days outside weekends and holidays;
c)at times which enables the parent to be involved in the child’s daily routine; and
d)occasions and events significant to a child.
Clearly, however, pursuant to s.65DAA(5), the Court must have regard to issues such as how far the parties live apart, their current and future capacity to implement arrangements and so forth.
Section 60CA of the Act requires that any order the Court makes today to be in the “best interests of the child”. Hence, the Court must consider the relevant factors under ss.60CC(2) and 60CC(3) of the Act to achieve this.
Primary considerations: s.60CC(2) of the Act
The Court is required under s.60CC(2)(a) to consider the “benefit of a child having a meaningful relationship with both of the child’s parents”. At this point, let me note that meaningful does not necessarily mean equal, but clearly signifies that both parties should be involved with their child and consequently signifies an expectation of time to be spent. The right of a child to spend time with each parent and extended family is clearly the right of the child. Clearly the Court will need in all likelihood, to give considerable weight to this factor at a final hearing should it be needed.
The Court is also required under s.60CC(2)(b) to consider the “need to protect a child from physical and psychological harm or being subjected to abuse, neglect or family violence”. At this point, let me say that there is no doubt that [X]’s best interests would be to develop a meaningful relationship not just with the mother but also the father. Nevertheless, that needs to be balanced in respect of protecting [X] from any harm, particularly harm associated with issues that may be relevant to this particular case.
Additional considerations: s.60CC(3) of the Act
As to the additional considerations, two issues that cannot be overlooked are:
a)what arrangements were in place until relatively recently; and
b)what the impact of the travel involved on the child will be in any event.
The Court is satisfied that [X] has some history of having to travel between the father’s current home in a rural property and Suburb A In the long-term, the mother’s request to relocate to Suburb C or the father’s request for her to return with the child to Suburb A will need consideration.
Conclusion
After considering the available evidence and the submissions in light of the structured discretion in the Act, the Court considers a cautious approach is needed. I am not satisfied that, at this point, an equal time arrangement is practicable. That said, I am satisfied that a substantial and significant arrangement is reasonably practicable.
The Court has formed the view that, until further order, it is in the best interests of [X] to spend five nights with the father and the remainder with the mother of a fortnightly period.
Consequently, until further order, [X] will live with the father as follows:
a)in the first week, in default of agreement as to times, from 4:00pm Thursday until 4:00pm Sunday; and
b)in the alternate week, in default of agreement as to times, from 10:00am Wednesday until 4:00pm Friday.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 19 October 2010
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