Josey and Meibos
[2009] FMCAfam 470
•8 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JOSEY & MEIBOS | [2009] FMCAfam 470 |
| FAMILY LAW – Interim parenting orders – best interests of the children – unilateral change of children’s school/crèche – time for children. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 60CC(2), 60CC(3), 60CC(4) |
| Goode & Goode [2006] FamCA 1346 Paquette & Paquette [2008] FMCAfam 137 Morgan and Miles [2007] FLC 93-343 |
| Applicant: | MS JOSEY |
| Respondent: | MR MEIBOS |
| File Number: | MLC 2653 of 2009 |
| Judgment of: | O’Sullivan FM |
| Hearing date: | 5 May 2009 |
| Date of Last Submission: | 5 May 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 8 May 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hoult |
| Solicitors for the Applicant: | McBain Lawyers |
| Counsel for the Respondent: | Ms Brooker |
| Solicitors for the Respondent: | T J Mulvany & Co |
ORDERS
The matter be adjourned for interim hearing on 14 August 2009 commencing at 10.00 am at the Federal Magistrates Court of Australia at Melbourne.
The matter be listed for final hearing on 23 November 2009 at
10.00 a.m. (with an estimated hearing time of 2 days) at the Federal Magistrates Court of Australia at Melbourne.
The mother forthwith return the children [X] born [in] 2002 to [P] Primary School and [Y] born [in] 2006 to [C] Children’s Centre and both parties do all such things and sign all such documents as is necessary to effect their re-enrolment if necessary.
The mother is restrained from removing the said children from their respective school and crèche pursuant to paragraph 3 herein.
That each party have the day to day care, welfare and development of the children whilst the children are in their respective care.
That the children live with the father as follows:
(a)from 3.30 pm or the conclusion of school on Friday commencing 15th May 2009 until 3.30 pm or the conclusion of school the following Friday and each alternate week thereafter.
(b)at any other time as otherwise agreed between the parties.
The children live at all other times with the mother.
Changeover occur at the children’s school or crèche unless closed in which event the mother shall deliver the children to the father’s residence at the commencement of his time with him and the father shall deliver the children to the mother’s residence at the commencement of her time period with him, with the parties to remain at the front of the others property.
In the event of a special occasion such as either parties birthdays, and/or the children’s birthday the children spend not less than 3 hours with the other parent to whom they are not residing with that week as agreed between the parties and failing agreement from after school/crèche until 7 pm.
The parties shall spend time with the children by telephone when they are not in their respective care, as agreed between the parties and failing agreement on Wednesday between 6.00 pm and 7.00 pm.
Pursuant to section 62G(2) of the Family Law Act 1975, the parties and the children attend upon Dr A for the purposes of the preparation of a Family Report to be given to the Court before the adjourned date, such Family Report to deal with the following matters:
(a)any wishes expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(b)the nature of the relationship between the said children with each of the said children’s parents and with significant other persons;
(c)the likely effect of any changes in the said children’s circumstances, including the likely effect on the said children of any separation from:
(i)either of the parents, or
(ii)any other child, or significant person, with whom the said children has/have been living;
(d)the practical difficulties associated with the said children having contact with a parent and whether those difficulties will substantially affect the said children’s right to maintain personal relations and direct contact with both parents on a regular basis;
(e)the capacity of each parent, or of any other person, to provide for the needs of the said child/ren, including emotional and intellectual needs;
(f)the said children’s maturity, sex and cultural background, and any other characteristics of the said children that the counsellor thinks are relevant to the said children’s welfare;
(g)any physical or psychological abuse that the said children has/have been or is/are likely to be subjected;
(h)any ill-treatment, family violence or other abusive behaviour that is directed towards a member of the said children’s family, extended family or significant person, and the likely impact of this on the said children; and
(i)any other matters that the Counsellor considers important to the welfare or best interests of the said children.
The parties do comply with all reasonable directions as to attendance upon the Counsellor as and when required by the Counsellor.
Within 7 days of being notified of the Counsellor, the solicitor for each of the parties do deliver or cause to be delivered to the Counsellor copies of the following documents:
(a)all relevant applications and responses filed by or on behalf of his/her client in the within proceedings;
(b)all relevant affidavits filed by or on behalf of his/her client in the within proceedings; and
(c)any intervention or restraining orders currently in force.
That contemporaneously with paragraph 11, 12 & 13 above, both parties forthwith do all acts and things necessary to attend upon
Dr A, psychiatrist for the purpose of the preparation of a report providing an assessment of his/her psychiatric state, such report to deal with the following matters:
(a)the mother and father’s relevant history (including relevant medical history);
(b)the mother and father’s psychiatric, psychological and emotional health and functioning;
(c)any relevant diagnosis; and
(d)if appropriate, suggested treatment or management, and the likely prognosis.
(e)The cost of the report referred to be paid equally between the parties.
The parties forthwith commence and maintain a communication book with respect to the said children, which book shall travel with the said children between the parties’ respective places of residence.
Both the mother and the father:
(a)attend and complete, as soon as practicable, the Parenting Apart post separation parenting program ("the Program") at an organisation as nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia;
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the Program;
(c)pay and otherwise be responsible for all costs associated with the Program; and
(d)provide an appropriate certificate of completion of the Program to the other parties’ or their solicitors.
Until further order, the father, his servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the mother to or in the presence or hearing of the said children or any of them, and from permitting any other person so to do.
Until further order, the mother, her servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the father to or in the presence or hearing of the said children or any of them, and from permitting any other person so to do.
In the event of a medical emergency or illness affecting the child/children whilst the children are in their respective care, the party who has the child is to contact the other party as soon as practicable and advise of the child/children’s condition and details of the child/children’s treating medical practitioner.
The mother do file and serve all further affidavits and other material to be relied upon by the mother not later than 28 days prior to the trial.
The father do file and serve all further affidavits and other material to be relied upon by the father not later than 14 days prior to the trial.
All parties do file and serve an Outline of Case document in an appropriate form by not later than 72 hours prior to the trial date setting out the following:
(a)a list of the material relied upon;
(b)a brief chronology listing significant events;
(c)a list of contentions with respect to each of the considerations relevant to determining the best interests of the children (sec 60cc factors);
(d)a list of other contentions relevant to the decision;
(e)whether the presumption of equal shared parental responsibility applies (sec 61da), and if not the contentions relied upon;
(f)a list of the considerations relevant to considerations of equal and substantial parenting time (sec 65daa);
(g)a list of other relevant considerations (including the relevant section number, eg secs 60cg, 61f, 65dab, 65dac, etc); and
(h)the actual orders sought.
The father’s costs be fixed at $1,500 and the question of the father’s costs be reserved to final hearing.
In the event of any applicable filing, setting down, 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 do 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.
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 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 these particulars are included in these orders.
AND THE COURT NOTES THAT:
A transcript of the reasons will be provided to parties.
In the event of non compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
(a)the filing of documents;
(b)the payment of any applicable filing, setting down, mediation or enforcement fee or fees; and/or
(c)any other procedural issues,
the application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Federal Magistrate, or by another appropriate court officer, shortly prior to the final hearing date.
IT IS NOTED that publication of this judgment under the pseudonym Josey & Meibos is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 2653 of 2009
| MS JOSEY |
Applicant
And
| MR MEIBOS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Introduction
These reasons for decision are delivered orally. However a transcript will be ordered and amendments made to render these orally‑delivered reasons more amenable to being read and provided to the parties.
This is an application for parenting orders under the Family Law Act 1975 (“the Act”) filed on 27 March 2009. The applicant, Ms Josey (“the mother”) seeks parenting orders for two children of her relationship to the respondent, Mr Meibos (“the father”).
These reasons concern a dispute between the parties over the necessary interim parenting orders for those children.
The matter came before the Court for the first time in a busy duty list on 4 May 2009. Unfortunately the matter was not reached on the day and was stood over to 5 May 2009.
Mr Hoult of Counsel was appeared on behalf of the mother. The father was represented by Ms Brooker of Counsel.
Submissions concluded late in the afternoon of 5 May 2009 and due to the number of matters that required determination in the duty list this week the Court reserved its decision until 8 May 2009.
Background
The parties commenced cohabitation in 2002. The parties initially separated on 23 June 2008 and then reconciled for several months. Final separation occurred on 23 January 2009. There are two children of the relationship, [X] born [in] 2002 and [Y] born [in] 2006 (“the children”).
Since the mother’s application was filed on 27 March 2009, and as will become clear presently, unilateral actions taken by the mother have seen a change in the children’s school, crèche and living arrangements.
There are no existing parenting orders for the children and the mother did not make a formal application for interim parenting orders in her court documentation.
After the application was filed solicitors for the father filed an application in a case on 15 April 2009 seeking to restrain the mother from relocating the children from their existing school and crèche and other parenting orders.
An abridgement of that application was refused and the father filed a response to the mother’s application on 30 April 2009 which sought interim parenting orders in virtually the same terms as that in the earlier application. Finally, on 1 May 2009 the mother filed a response seeking the father’s application in a case be dismissed.
Importantly for present purposes in her material the mother did not seek orders to change the children’s schools or residence on an interim basis and those issues are only now uppermost in the parties minds.
However, by way of further background in her affidavit sworn
27 March 2009the mother deposed to the regime the children spent between their parents households after separation. The mother also deposed to the parties separating in June 2008, reconciling in November 2008 and separating again in January 2009.
In his affidavit affirmed 9 April 2009 the father’s evidence was the children had been living with him 3 nights per week at the time of the first separation. The father’s evidence was the children had been spending 4 nights per fortnight with him since the separation in January 2009.
In his affidavit affirmed 30 April 2009 the father gave evidence that he saw the children nearly every day collecting them for and taking them to school and crèche and being involved in their daily routine of a morning and evening.
The father’s evidence was the parties had agreed that children’s school and crèche would not be changed until at least the end of 2009 so that they could maintain a settled routine of care. It was the father’s evidence that the mother’s proposal would result in the children spending considerably less time with him than they had been used to. He did not agree that such a limited time was warranted or in the children’s best interests or that their school/crèche should have been changed (as it had been by the mother) and said that such a change was not in their best interests.
Approach to interim parenting orders
The principles governing the Court’s determination of this matter are set out in the Act. A parenting order is defined by section 64B of the Act.
In deciding whether to make a particular parenting order section 60CA requires that I must have regard to the best interests of the children as my paramount consideration.
How the Court approaches determination of an interim application such as the present was considered by the Full Court of the Family Court in Goode & Goode [2006] FamCA 1346 (“Goode”).
The steps identified in Goode for an application such as the present are described in paragraph [82] as follows:
“(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.”
Whilst at the hearing Counsel for both parties maintained this matter was not an interim relocation case in Paquette & Paquette [2008] FMCAfam 137, Sexton FM considered the principles on such a matter as follows:
“12.The principles governing parenting cases are set out in Part VII of the Family Law Act 1975. The Full Court in Goode & Goode [2006] FLC 93-286 says in interim proceedings, as in final proceedings, the Court must follow the legislative pathway.
13.In the recent decision of Morgan and Miles[1], her Honour Justice Boland examined in detail the impact of the 2006 amendments to relocation cases, including interim relocation cases. Her Honour held that the earlier core principles which must be applied when determining a parenting matter involving relocation remain valid:
· The child’s best interests remain the paramount but not the sole consideration;
· A parent wishing to move does not need to demonstrate compelling reasons;
· A judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
· The child’s best interests must be weighed and balanced with the right of the proposed relocating parent’s freedom of movement.
14.Her Honour found there was no legislative mandate to consider different criteria in interim parenting applications involving relocation to final applications, although in an interim application, there will be an abridged inquiry. Her Honour said at paragraph 83 that before the changes to the Act of 2006, the principles in Cowling [1998] FLC 92-801 regarding the factors relevant to a child’s stability led generally to courts prohibiting relocation on an interim basis, or made orders which provided for the return of a child if only a short period had elapsed after a unilateral relocation by one parent.
[1] [2007] FLC 93-343
15. At paragraph 84, her Honour says:
The cases demonstrate that sensibly Judges recognised that these very difficult cases, often with far reaching consequences for the child, required the full investigation which can only occur at a final hearing, or now by issues being identified and determined in a Less Adversarial Trial as contemplated in Div 12A of Pt VII.
16.Her Honour after considering the impact of Goode’s case on the principles in Cowling, says at paragraph 86 and 87:
I conclude, the legislation, including the matters referred to above in Goode, does require consideration of s 60CC, s 61D, and s 65DAA (with reference to s 4(1)) in dealing with all interim applications for parenting orders including applications involving a relocation, or where an “unauthorised” relocation has occurred.
As explained in Goode, the circumstances of the child at the time of the application or immediately before an unauthorised removal, particularly absent issues such as abuse or violence, may well be likely to be extremely relevant.
17.Following the legislative pathway, section 60CA of the Act provides that I must regard the best interests of the children as the paramount consideration. To determine the children’s best interests I must consider the two primary considerations set out in section 60CC(2) and the
13 additional considerations set out in section 60CC(3) as far as they are relevant. Section 60CC(4) requires me to consider also the extent to which each party has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities. I must consider all the factors before making a determination. The primary considerations are consistent with the first two objects of the Act set out in section 60B to which I must have careful regard.”
The manner in which the proceedings were conducted meant, as they were interim proceedings, that neither the evidence of the mother or the father could be tested. Accordingly, I am not able to make findings of fact as to the matters in dispute between the parties.
Indeed many of the considerations set out in s60CC of the Act in this matter are difficult to determine at this stage such is the detail of the factual disputes between the parties. For example each accuses the other of a poor attitude to the responsibilities of parenting and violence.
The determination of what final orders should be made in the children’s best interests must also await a final hearing which will occur later this year.
Consideration of interim orders
The application had been supported by:
·an affidavit sworn 27 March 2009;
·an affidavit sworn 1 May 2009.
As well as the application in a case and affidavit of 9 April 2009 the father’s response was supported by:
·an affidavit affirmed 30 April 2009.
The competing proposals of the parties
This is an interim hearing and in accordance with a decision in Goode & Goode (supra) the Court is required to compare the proposals of each of the parties. The parties have each provided a minute of proposed orders on an interim basis.
The Courts inquiry into the children’s best interests is necessarily abridged at this interim stage. The Court has not had the benefit of any independent expert evidence and much of the parties evidence remains untested. The Court is therefore unable to determine what parenting arrangements are in the children’s best interests in the long term.
In the affidavit of 9 April in support of the application in a case the father’s evidence was the mother had not consulted him about ongoing arrangements for the children and he set out his concerns about changes to the children’s school and crèche.
The mother in her affidavit sworn 27 March 2009 deposed to her concerns about what she said was the father’s violent mood swings and angry and aggressive nature. The mother also deposed to other concerns at paras 20-21 of that affidavit.
In his affidavit of 30 April the father’s evidence was of what he said was the mother’s controlling and insecure personality.
In the ultimate both parents made allegations against the other of poor parenting behaviour or practices that weren’t in the children’s best interests. The detail that the parties went to in this regard does raise a question as to whether there were other motivations for doing so other than expressing concerns about what was best for the children.
An example of this was the mother’s reference to the father’s objection to her eating curry whilst pregnant or breast feeding and the father’s evidence that the mother left [X] outside in a towel during winter.
Turning then to consider the competing proposals of the parties for interim orders.
Mother’s proposed minute
The mother through her Counsel provided the Court with a minute which set out the interim orders she sought which was marked exhibit “A1” which set out:
“1.That the mother’s application filed 27 March 2009 and the father’s response filed 15 April 2009 be adjourned for final hearing.
2.That the parties attend before Dr A for the purposes of the preparation of a psychiatric report.
3.That the parties attend upon Dianne Dockeary for the purpose of the preparation of a family report such report to be paid in equal shares between the parties.
4.That the father undertake an approved anger management course to be evidenced by the granting of a certificate.
5.That until further order the father spend time with [X] (“[X]”) born [in] 2002 and [Y] (“[Y]”) born [in] 2006 as follows:
(a)from the end of school/crèche Friday to the commencement of school/crèche Monday in week 1 and from the end of school/crèche Monday to the start of school/crèche on Tuesday week 2 and alternatively weekly thereafter week 2 to commence 11 May 2009.
(b)that the father collect and return the children to school/crèche at the beginning and conclusion of time.
(c)Where time falls on a non school day the mother deliver the children to the father’s house at the commencement of time and the father deliver the children to the mothers house at the conclusion of time.
6.That [X] attend [S] Primary School and [Y] attend the [K] crèche.
7.That the mother make file and serve any further material upon which she seeks to rely 28 prior to the date of the final hearing.
8.That the father make file and serve any further material upon which he seeks to rely 14 days thereafter.
9.Both parties file an outline of case document 48 hours prior to the final hearing.”
Father’s proposed minute
The father through his Counsel provided the Court with a minute of the proposed orders he sought which was marked exhibit “R1”:
“Until further order
1.The mother forthwith return the children [X] born [in] 2002 to [P] Primary School and [Y] born [in] 2006 to [C] Children’s Centre.
2.The mother is restrained from removing the said children from their respective school and crèche pursuant to paragraph 1 herein.
3.The mother and father have equal shared parental responsibility of the said children.
4.That the children live with the father as follows:
(i)from 3.30 pm or the conclusion of school on Friday commencing 8th May 2009 until 3.30 pm or the conclusion of school the following Friday and each alternate week thereafter.
(ii)At any other time as otherwise agreed between the parties.
5.The children live at all other times with the mother.
6.Changeover occur at the children’s school or crèche unless closed in which event the mother shall deliver the children to the father’s residence at the commencement of his time with him and the father shall deliver the children to the mother’s residence at the commencement of her time period with him, with the parties to remain at the front of the others property.
7.That the parties attend upon a counsellor for the purpose of a family report and the parties attend as directed for the purpose of a psychiatric assessment such cost to be shared equally.
8.The parties forthwith enrol. In a Post Separation Course and produce evidence of completion of same to their respective representatives.
9.The matter be listed for final hearing.
10.That the parties file and serve any further affidavit material they seek to rely upon 28 days prior to the final hearing.
11.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 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 these particulars are included in these orders.
12.Certify for Counsel.
NOTATION:
A.Without admitting the necessity for same the parties undertake an agreed Anger Management Course to be evidence by the granting of a certificate.”
Identifying any agreed or uncontested relevant facts
Some of the background facts have already been set out above and as noted earlier there are no existing parenting orders.
The mother is 40 and the father is in his 50’s and has been married previously. Both the mother and the father are professionals with flexible working arrangements that, it appears, allowed them considerable scope to care for the children before and after school/crèche and the arrangements for them to do so changed over time both during cohabitation and afterwards.
During the course of the relationship the parties travelled to the UK and there had been intervention orders in 2006/2007. There are other mutual intervention orders in force until August 2009.
The parties separated in late January 2009. After the parties separated in January there had been discussions between the parties over plans for the father to take the eldest child on a trip to the UK in July 2009.
Prior to the start of term 2 in 2009 the children had been attending crèche and school in the [P] area for some time. After the parties had separated the mother and the children remained living in the [P] area and the mother and the father shared the cost of a separate residence for that purpose. The lease over that property is to expire in July 2009.
In late March 2009 the mother and the children moved from [P] to [S] (some 16 or so kilometres away). The mother enrolled the children in a new crèche and school as they were now living with her new partner in his home. The mother also has a sister living in the [E] area.
There was a breakdown in the arrangements for the children to spend time with the father at or around the time of the move in March.
Identifying the issues in dispute in the hearing
It was common ground that the issues in dispute were whether the children should be returned to the school and crèche in the [P] area and what time they should spend with the father. I have already identified the parties proposals on the issues.
At the hearing Counsel for the mother did not pursue orders on an interim basis for restraints and passports that had been referred to in her material. Counsel for the mother also acknowledged that given the parties were to attend a psychiatrist an order regarding attendance at anger management courses could await consideration by that expert.
Finally as was established during the course of the exchange with Counsel there was some sense in the psychiatrist the parties had agreed on also doing the family report as that would expedite matters and reduce costs for all involved.
It was the father’s position that the children should return to the school and crèche in the [P] area and the mother’s unilateral action in removing them and thereby changing their routine was not in their best interests. The father’s position was that there should be a regime of shared care which would minimise the effect on the children of the parties separation.
The mother in her further affidavit sworn 1 May 2009 deposed to the arrangements for the children spending time with the father after separation only having been agreed to due to the father’s intimidation and bullying. In her latest affidavit the mother deposed to time the children have had with the father since she moved residence from the [P] area and that the children were in her view happier and more settled since separation and now they were in their new school and crèche as of the start of Term 2.
Relevant matters in section 60CC
The Court must consider the matters set out in section 60CC(2) that is the primary considerations and the matters in section 60CC(3) the additional considerations. Further, the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in his or her parental responsibilities.
Primary considerations
The benefit to the children of having a meaningful relationship with both of their parents
The Act recognises the benefit to the children of having a meaningful relationship with both parents. There was no suggestion that these children shouldn’t be offered that opportunity.
The need to protect the children from physical or psychological harm
Notwithstanding the history of intervention orders there was no submission made at the hearing that would suggest this factor was particularly relevant for the purposes of determining this particular dispute in terms of the time the children should spend with their father or where they should go to school/crèche.
Additional considerations
The children’s expressed views and the weight those views should be given
Neither given the children’s ages was there a submission made that would suggest this factor was particularly relevant for the purposes of determining this particular dispute.
The nature of the relationships between the children and each parent and other people important in their lives
There is nothing to suggest the children do not have a positive relationship with both their parents. The father says that the children had and enjoyed close relationships with those in their local school and crèche before the mother’s decision to make the change at the beginning of term 2. On what is before me I am concerned that if the children do not spend regular time with the father (consistent with his level of involvement in their daily lives before the move) the relationship may change.
The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the children and the other parent
I find it difficult to reconcile the mother’s unilateral actions in moving the children’s crèche, school and living arrangements with a finding that she would promote the children’s relationship with the father.
In any event I would be unable to make such a finding on an interim basis and difficult to understand for them.
The explanation proffered by the mother for the move and its timing is the start of term 2 and the upcoming expiry of the lease on the rental property in [P]. However, I am not satisfied she could not have remained in the area until the parties were able to resolve their post separation arrangements or she had at least obtained a court order given the first return date of her application.
The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from a parent or any other person with whom they have been living
Whatever order the Court makes as a result of the mother’s decision will see the children travelling for longer periods between their parent’s homes. Given what the Court was told had been the case both immediately before and after separation I am able to conclude that they will have to make adjustments as a result of the mothers actions and some of the changes (such as increased travelling times or limits on after school play/s with friends from the old school/crèche as a result) may prove taxing and difficult to understand for them.
There is no evidence to suggest the children were not well settled in the established school/crèche before the move in late March.
The authorities of the Family Court make clear that except in cases of emergency the arrangements which will be in a child’s best interests should not be determined in an abridged hearing and these are the types of cases in which a child’s present stability may be extremely relevant on an interim basis.
The practical difficulty and expense of the children spending time with both parents
The distance between the two residences is less than 20km. However, there are other factors to consider in this regard and they include that the greater distance between the homes will limit the opportunities for the children to spend unstructured and ad hoc time with each parent before and after school or otherwise as agreed.
The capacity of each parent or other person to provide for the children’s needs
There was no submission made that would suggest this factor was particularly relevant for the purposes of determining this particular dispute. However I note both parties are it appears from their material busy professionals who have had to juggle work and family.
The mother is, so the Court was told, pregnant and in a new relationship with a partner who has a child that also spends time with him in his household where she and the children are now living.
The maturity, sex, lifestyle and background of the children and the parents
The father’s family it appears is largely overseas and the mother has a sister in [E] (a suburb in Northern Melbourne). Whilst the parties cohabited they travelled to the UK and it appears the father and at least one of the children plan to do so again later this year and there have been discussions to that effect.
The attitude each parent has demonstrated to the responsibilities of being a parent
It was the father’s position the children had been adversely affected by the recent instability brought about by the mother’s actions and this reflected poorly on her. The father also criticised the mother for repudiating what he said was an agreement they had reached to ensure the children remained in their old school/crèche and settled until at least the end of 2009.
In my view the mother’s unilateral actions appear to reflect poorly on her attitude to the responsibilities of parenthood. She has taken it unto herself to make decisions in relation to the long term interests of the children, changed their school/crèche and altered the arrangements by which they spend time with their father.
Any family violence
There are current mutual intervention orders in place that defer to any parenting order of this Court.
Any other fact or circumstance
There was no submission made that would suggest this factor was particularly relevant for the purposes of determining this particular dispute. However I note that the children were removed from their school and crèche at the end of term 1 and started at a new school/crèche at the start of term 2. In this matter the father seeks orders that would see the children return almost immediately to those schools when the children are over 3 weeks into term 2.
What orders would minimise the risk of there being further Court proceedings about the children
This is the first Court date for these parties and the determination of what orders should be made on a final basis in the children’s best interests will have to await a final hearing later this year.
To the extent to which each parent has fulfilled or failed to fulfil, his or her responsibilities as a parent, including spending time with the children, participating in decision–making about the children’s welfare, and facilitating the other parent to do the same, and the extent to which each parent and party has fulfilled his or her obligation to maintain the children
Whilst impliedly acknowledging his client’s conduct reflected poorly on her awareness of her parental responsibilities, the Court was asked (rhetorically) by Counsel for the mother as there were no orders why did she have to seek the father’s permission first. This factor answers that question.
Does the presumption of equal shared parental responsibility apply?
As set out in Goode (supra) in interim proceedings it may be appropriate, given the nature of those proceedings, to find that the presumption of equal shared parental responsibility should not apply.
It is also clear that the presumption may be rebutted if there are reasonable grounds to believe that family violence has occurred.
In this case both parties agreed there had been family violence during cohabitation. There have also been proceedings for intervention orders.
There are also other grounds on which the presumption may be rebutted. The material on the Court file in relation to this matter makes clear that there is ongoing conflict between these parents. The social science research into children makes clear that young children are especially vulnerable to family conflict.
In this matter the mother sought an order for sole parental responsibility and the father sought an order for equal shared parental responsibility.
Social science research in this area makes clear that children do best when their parents manage to keep conflict low and between themselves. The material on the Court file in this matter indicates that both the mother and the father in this matter allege the other is incapable of doing so.
In a paper by McIntosh and Chisholm in the January 2008 edition of Australian Family Lawyer the authors commented that:
“It is well documented that conflict between parents has an adverse impact on their ability to parent sensitively and interparental conflict brings a higher likelihood of harsh styles of discipline and diminished emotional responses, which are parenting behaviours associated ultimately with the child's emotional insecurity and social withdrawal.
…
When children of any age make frequent transitions between warring parents, who are unable to conceal their feelings in the presence of the child, children then begin to use considerable energy to ensure their own comfort and emotional safety in each environment, actively and constantly monitoring the emotional weather they encounter in each parent's home.
…
When considering the benefit to a child of a meaningful relationship with both parents, considerable weight should be given to the need of the child for care and contact arrangements that protect them from parental dynamics likely to erode their developmental security.”
That is social science research. In this case the Court is required to follow the legislative pathway set out in Goode (supra). In this case
I am not satisfied that it is appropriate to apply the presumption for the reasons set out above. In coming to that conclusion I also note that it appears, whilst the mother and the father appeared prior to these proceedings to be capable of discussing long term issues such a plans for the eldest child to travel overseas in July but that may no longer be the case.
As well as the above matters the material filed by both parties raised cause for concern particularly about their level of insight into their contribution to this situation which is apparently so intractable that as the children’s parents they are unable to resolve it themselves.
Consideration of time for the children
Given the finding regarding the rebuttal of the presumption in section 61DA of the Act the Court is required to consider making interim parenting orders in the best interests of the children as a result of the application of the relevant factors in section 60CC of the Act and taking into account the objects and principles set out in section 60B.
The Court is required to consider whether spending equal time with both parents is in the best interests of the children whether the children spending equal time with both parents is reasonably practical and to consider making an order to that effect.
If the Court does not make an order for the children to spend equal time with each parent, to consider whether the children spending substantial or significant time with either of their parents in the children’s best interests, and whether spending substantial or significant time is reasonably practical, and then go on to consider making orders for the children, subject to it being in their best interests.
After these parties separated the children lived in [P] between the two residences and attended school/crèche very close to home. They also spent time with each parent most days and had network of friends in the local area.
In this case the father suggested equal time was appropriate.
This submission was advanced in the face of the practical difficulties that could stand in the way of such an arrangement given the distance between the homes of the mother and the father. Indeed in submissions Counsel for the father made a virtue for the children out of the stability such an arrangement would provide. There was no question the child had all the necessities such as clothing etc that they needed in each home to move between them and do so with the ability to minimise disruption to their routine.
The future course of this matter is such that a family report will be prepared and there will be a psychological evaluation of both parents before the matter proceeds to trial and a family report before the next adjourned date. There are intervention orders in place in favour of both parents and given what has occurred communication and co-operation for the sake of the children is not a given.
Accordingly I am cognisant of the need to put in place spend time arrangements that allow the children to settle into a routine again in both houses and enjoy time with both parents. I have considered both parties proposals for the children to spend time with the other parent.
A significant factor in my view in these proceedings is not only the mother’s actions referred to above but the opportunity for the children to maintain a meaningful relationship with their father. I am not satisfied the mother’s proposal maintains or affords the children the level of involvement with and opportunity to spend time with the father that they had before the mother moved their school and residence.
Presently it appears the children have undergone a lot of changes in a short space of time. There may be others in the future as the Court was told the mother is pregnant and in her first trimester. The changes brought about by the mother have seen them miss a routine of time with the father, move from their previous home (which they are sharing with the mother’s new partner) and change schools/crèche between terms and have to find a new network of friends there.
In the context of separated parents the ability to maintain touch with the school and crèche (and the extended networks they offered) they attended before the mother moved cannot be underestimated as an anchor enabling the children to weather other changes in their lives including the flow-on effect of their parents separation. An order in the terms sought by the father would also afford them the benefit of spending time with their father as part of their normal routine (i.e. before and after school). There was no suggestion the father would not be able to care for the children and attend to their needs before and after school and whilst they were spending time with him.
Counsel for the mother acknowledged his client should not have unilaterally changed the children’s school/crèche. However the Court was asked to consider whether making an order changing the school/crèche back would be in their best interests.
It is indeed regrettable that whatever order I make on an interim basis may adversely impact on the children at least in the short term. I have as I said earlier considered the proposals of both parties in relation to the children’s living arrangements. I am not satisfied the mother fully considered the impact on the children and the changes to the existing routines before taking the action she did.
Even taking into account the roles of each parent prior to the move so far as I am able to determine on the material before me and noting that the mother may well have some greater flexibility the children are young and given the background referred to above it would be least disruptive for them to spend week and week about with changeover before and after school/crèche. In considering such an order I have also been mindful this will minimise travel in the week they are with the father. That arrangement will not commence to Friday 15 May to allow the necessary arrangements to be made with both schools and crèche and the parents to sign all such documents as is necessary to do so.
In coming to such a conclusion I have considered the length of time they will apart from the mother and the level of communication between the parents and factored in the level of involvement they had with their parents before the move. I am of the view in the circumstances brought about by the mother such an arrangement on an interim basis affords the opportunity for the children to build back up some of the stability they had prior to the recent changes and reintegrate back into a familiar school/crèche that will offer them the anchor referred to earlier.
There are of course other alternative available to these parents.
The material before the Court shows they have been able to come to arrangements in the past in relation to time with the children without the intervention of lawyers and it is possible they will do so again.However on what is before me and for the above reasons I am satisfied that the father’s proposal provides for the children’s best interests better on an interim basis. To allow appropriate time for the reports to be prepared I will adjourn the matter to an available interim Court date convenient to the parties and also fix the matter for a final hearing.
Conclusion
For the reasons set out above I am satisfied that the interim orders set out at the beginning of these reasons are in the children’s best interests.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of O’Sullivan FM
Associate: Rachelle Lombardo
Date: 8 May 2009
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