KARLE & PELUSO - [2020] FamCA 633

FAMILY COURT OF AUSTRALIA

KARLE & PELUSO

[2020] FamCA 633

FAMILY LAW – PARENTING – Where the mother opposes the children spending overnight time in the presence of the father’s flatmates – Where there is no risk enunciated to the children being in the presence of the flatmates – Orders allowing overnight time – Orders for the father to have graduating time with the children during holidays – Ancillary orders made.

Child Support (Assessment) Act 1989 (Cth) s 106B.
Family Law Act 1975 (Cth) ss 68B, 4
Family Law Rules 2004 r 1.14

APPLICANT:

Mr Karle

RESPONDENT:

Ms Peluso

INDEPENDENT CHILDREN’S LAWYER:

Ark Law Lawyers

FILE NUMBER:

SYC

1386

2015

DATE DELIVERED:

4 August 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

22 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Murray

SOLICITOR FOR THE APPLICANT:

M J Woods & Co

COUNSEL FOR THE RESPONDENT:

Mr Greenaway

SOLICITOR FOR THE RESPONDENT:

Legal Aid NSW

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Sperling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ark Law Lawyers

Orders

IT IS DECLARED

That pursuant to section 106A of the Child Support (Assessment) Act1989 (Cth), Mr Karle should be assessed in relation to the costs of the child Y Peluso, born on ... 2016

IT IS ORDERED

That pursuant to rule 1.14 of the Family Law Rules 2004 the time for filing of an application under section 106A of the Child Support Assessment Act1989 (Cth) be extended.
That the parents have equal shared parental responsibility for the children, X who was born on … 2014 and Y Peluso who was born on … 2016.
That the children live with the mother.
That during school terms the children spend time with the father each alternate weekend commencing on 8 August 2020, from 9am on Saturday until 6pm on Sunday.
That the children spend time with the father during school holidays as follows:
(a)In the first week of the September/October holidays in 2020 for two consecutive nights and unless otherwise agreed, by extending the father’s weekend time with the children to 6pm on Monday.
(b)In the second week of the September/October holidays in 2020 for three consecutive nights and unless otherwise agreed, by extending the father’s weekend time with the children to 6pm on Tuesday.
(c)In the school holidays at the end of Term 4 in 2020 for three separate periods each of four nights and in the absence of agreement by extending the father’s weekend time with the children to commence at 10am on Thursday and end at 6pm on Monday.
(d)Commencing in 2021, in the holidays after Terms 1, 2 and 3, for half of the holiday and, in the absence of agreement, the first half.
(e)Commencing in 2021, for half of the long Christmas holiday and, in the absence of agreement, for the second half in odd numbered years and the first half in even numbered years.
That for the purpose of these orders, the school holiday commences at 9.30am on the day after the last day of the school term and ends at 6pm on the day before the first day of the following term.
That where the children lived with the father for the first half of any school holiday period, the weekend time in Order 5 shall commence on the first weekend immediately following the beginning of the next school term.
That notwithstanding any other order, in even numbered years, the children shall live with the mother from 5pm on Christmas Eve until 5pm on Christmas Day and with the father from 5pm on Christmas Day until 5pm on 26 December.
That by 4pm on 24 November 2020 the father notify the mother in writing by email or text message whether he will spend time with the children in 2020 pursuant to Order 9.
That notwithstanding any other order, in odd numbered years, the children shall live with the father from 5pm on Christmas Eve until 5pm on Christmas Day and with the mother from 5pm on Christmas Day until 5pm on 26 December.
That the father shall not leave the children in the care of any of his flatmates or any guest of his flatmates.
That the parents will both be entitled to attend all events involving the children including:
(a) Sporting fixtures.
(b)Extra curricular activities that allow for parental attendance.
(c)School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions.
and the parent who has the children in their care on the day of such activity will be responsible for their day to day care at such event and the children’s transportation to and from that event.
That the children shall have the following communication with the parents:
(a)On Tuesday, Thursday and Saturday nights, the children shall have audio visual communication, through FaceTime, with the absent parent between 6.30pm and 7.00pm, with the father to initiate the call.
(b)For the purposes of either parent having communication with either parent, at the time the children are due to have the communication, both parents are to ensure their telephone is switched on and charged, and each parent shall ensure the other parent has the telephone number on which the children can be contacted.
(c)For the purpose of this order the “absent parent” is the parent who is not caring for the children on the relevant day.
That unless otherwise agreed, for the purpose of facilitating the children’s time with the father in the orders above the mother will deliver the children to the father outside Woolworths near B Railway Station at the beginning of the children’s time with the father, and the father will deliver the children to the mother, the C Supermaket near D Railway Station at the end of the children’s time with the father.
That the father shall ensure that the mother is kept informed of:
(a)Any medical problems or illnesses suffered by the child while in the father’s care.
(b)Any medication that has been prescribed for the child.
(c)Any social, school or religious functions which the child is to attend.
(d)Any other matter relevant to the child’s welfare.
That the mother shall ensure that the father is kept informed of:
(a)Any medical problems or illnesses suffered by the child while in the mother’s care.
(b)Any medication that has been prescribed for the child.
(c)Any social, school or religious functions which the child is to attend.
(d)Any other matter relevant to the child’s welfare.
That within 28 days of the date of these orders the mother and the father will do all acts and things necessary for Y to be known as Y Karle.
That without admissions, both parents are restrained from exposing the children to sexually explicit material including on television, the internet or images, and both parents use their best efforts to ensure no third party exposes the children to sexually explicit material.
That each parent is restrained from making critical or negative remarks about the other parent in the presence or hearing of the children, or either of them, and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.
That within 14 days of these orders and within 14 days of the children’s subsequent enrolment at any school the mother do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to the father copies of all of each child’s school reports and merit cards, and any written material pertaining to each child’s academic and extra-curricular activities.
That in the event of the children suffering a serious medical injury or illness (to be defined as the child needing to attend a hospital), the parent who has care of the child shall notify the other parent as soon as practicable after the first contact with hospital, and in any event within two (2) hours, and shall provide contact details (including the telephone number) of the hospital and the name of the practitioner (if known).
That within five (5) days of these orders being made the father return X’s passport to the mother, and the mother hold the passport.
That notwithstanding any other Order, the children shall not be in the father’s care on the weekend that includes Mother’s Day but, in substitution, will be in the father’s care on the following weekend in accordance with Order 5.
That notwithstanding any other Order, the children shall spend time pursuant to Order 5 with the father on the weekend that includes Father’s Day but not the following weekend.
That the parents shall each keep the other informed of his or her current residential address and contact details including a landline telephone number, mobile telephone number and emergency contact number but the father shall not attend at the mother’s address unless specifically invited in writing by the mother to do so.
That in the event that either parent intends to change his or her residential address, he or she will give the other parent not less than four (4) weeks’ notice of the new address.
That in the event that either parent wishes to travel overseas with the children, the parent wishing to travel shall, not less than eight weeks before the proposed departure:
(a)Give the other parent notice of the proposed departure date.
(b)Provide the other parent with the proposed itinerary, return date and contact numbers and addresses where the children can be contacted during the holiday.
That the children shall not miss any school time when travelling with a parent without the agreement in writing of the other parent.
That each parent be restrained from:
(a)Taking or causing the children to attend upon any counsellor in relation to allegations of sexual abuse without the express written consent of the other.
(b)Filming and/or taking photographs of the children’s genitalia or showing any person any photograph, video or audio recording that is in the possession of the mother that relates to sexual abuse allegations raised in these proceedings.
(c)Coaxing any disclosure of abuse from the children.
That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

IT IS NOTED

That should the children become distressed during their first few overnight times with the father, the father will call the mother, and the parents will consider if the children should be returned to the mother.
That X is presently at F School, and it is intended that Y will also go to the same school.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1386 of 2015

Mr Karle

Applicant

And

Ms Peluso

Respondent

REASONS FOR JUDGMENT

Mr Karle (“the father”) and Ms Peluso (“the mother”) are the parents of X who was born in 2014 and Y Peluso who was born in 2016.
The parents have never lived together.
The present proceedings were instituted by the father’s filing an application seeking to spend time with both children. Since that application was filed on 24 October 2017, the relationship between the parents has been characterised by distrust and mutual accusations.
An illustration of their mutual distrust is found in the circumstances of Y’s paternity. When Y was born, the mother did not tell the father for about three weeks. The father has declined to sign the documents required to acknowledge paternity for the purpose of paying child support and thus has never paid child support for Y. The mother sought a declaration of paternity. The father asked for DNA testing. As recently as May 2020, when the test results showed that he was 99.9 per cent likely to be Y’s father, he queried why the result was not 100 per cent. Shortly before the hearing, the father signed the necessary documents to be noted on Y’s birth certificate as his father.
The extensive body of text messages between the parents, tendered by each of them, is rife with suspicion, threat and distrust. Neither parent emerges creditably from their exchanges.
It is to the credit of the parties, their legal advisers and the Independent Children’s Lawyer (“ICL”) that, with the assistance of a report by a single expert, Ms G who is a forensic and clinical psychologist, they have been able to resolve most of their disputes, leaving only limited issues to be resolved. Those issues were the subject of submissions before me.
The parents have agreed that they will have equal shared parental responsibility for the children; that the children will spend time with the father on alternate weekends from Saturday morning until Sunday evening; that the children will spend periods of holiday time with the father. They have also agreed on a suite of other orders which will be made.
The matters remaining to be resolved are these:
·    Where the children’s weekend time with the father will be spent.
·    Whether the father should be required to provide to the mother the names and dates of birth of his flat mates.
·    The progression of holiday time from a few days to half of the holidays.
·    The appropriate arrangements for Christmas.
·    The frequency of video communication.
·    Whether there should be an order requiring the father to care for the children if the mother is hospitalised.
·    Whether the parents should each be restrained from relocating.

Where the children’s weekend time with the father will be spent.

The mother in her trial affidavit deposed:
There have been no particular problems, as far as I am aware with [the father’s] time with the children. X, in particular, seems quite happy when she comes back from seeing her father. I do not have any concerns with the children spending time with [the father], unsupervised and even overnight, provided he has appropriate accommodation…
The mother’s concern about the suitability of the father’s accommodation for the children, as set out in her affidavit, is that he lives in a two bedroomed apartment and he rents one of the bedrooms to flatmates.
At the present time, the father occupies the second bedroom of the unit, which has its own bathroom and study nook, and two female flatmates occupy the larger bedroom that also has its own bathroom. They share the kitchen and living room of the unit.
If the children were to stay with the father overnight, he proposes that they would sleep in his double bed and he would sleep in a separate bed in the same room. The father is prepared to give an undertaking or submit to an order that he not leave the children in the care of his flatmates in his absence.
The father does not object to the mother meeting his flatmates.
It is understandable, having regard to the history of the relationship between the parents, that the mother is distrustful of the father but her subjective distrust, in the absence of an enunciation of the risk posed by his flatmates, is not sufficient to deprive the children of the benefit of spending overnight time with their father.
The father’s living arrangements are not ideal but there is no evidence that the presence of the flatmates causes any detriment to the children or distresses them in any way.
It is agreed that the children will spend weekend time with the father from 9am Saturday until 6pm Sunday in alternate weeks.
The time can be spent at the father’s home.

Whether the father should be required to provide to the mother the names and
dates of birth of his flat mates.

The basis of this application, as enunciated by counsel for the mother, was that, in the event that some issue or allegation should arise in the future involving the actions of one of the flatmates in relation to the children, the details would assist in issuing subpoenas.
There is no evidence that any of the father’s flatmates has had any specific interaction with the children.
There is no allegation raised in relation to the behaviour or character of the flatmates.
The source of power to make such an order must be found in s68B of the Family Law Act 1975 (Cth) (“the Act”).
It could not be argued that the basis for the application is that such an order is necessary for the protection of the children.
There is no basis upon which it is “just or convenient” as specified in s 68B(2) of the Act to make such an order.

The progression of holiday time to half of the holidays.

The father proposes orders in relation to school holidays which would provide for the children immediately to spend half of all school holiday periods with him.
The mother seeks a graduated approach. On her proposal, the children spend two nights with the father in the first week and three nights in the second week of the September 2020 holidays; they would have two periods, each of four days with the father in the Christmas holidays at the end of 2020; from the end of the first term in 2021 they would have half of each school holiday period (including the long Christmas holiday) with the father.
These children had, at the time of the hearing, stayed overnight with the father on one occasion only, for one night.
The September school holidays will start at the end of the third term on 25 September 2020. Pursuant to the orders which will be made, the children might have spent five periods of overnight time with the father, each for one night.
The September holidays start on 26 September 2020 and end on 11 October 2020, a total of 16 days. Therefore, on the father’s proposal, the children would spend eight consecutive days with their father.
For a child of three years, as Y now is, that is a considerable period to spend away from his mother who has not only been his primary carer but has, for most of his life, been his sole carer.
Until the first overnight period shortly before the trial, Y’s time with his father had been very limited. There was no contact between the father and Y until 16 November 2018, when Y was almost two years old. After 16 November 2018, that contact was limited to two hours each alternate Sunday at a contact centre. Unsupervised contact between the father and both children started in March 2020 between 9.30am and 1.30pm.
In April 2020, that time was extended to end at 6pm.
Their regular overnight times with their father will start on Saturday 8 August 2020.
I do not consider that it is in the children’s interests to be separated from their mother for a period of eight days after such a short period of spending overnight time with their father.
I prefer the mother’s proposal that they first spend a two night period with the father, then a three night period.
The Christmas holidays at the end of 2020 will last for about six weeks. The father proposes that the children spend a block period of three weeks with him. I do not consider that it is appropriate for Y, who will then be four years old, to be separated from his mother for such a long period of time.
The mother proposes, I accept appropriately, that the children spend periods of four days with the father in the Christmas holidays. However, she gives no reason for limiting the periods to two only in the six weeks of the holidays and the orders will provide that there be three periods of four nights, each to occur by extending the father’s alternate weekend time to start at 10am on Thursday and end at 6pm on Monday.

The appropriate arrangements for Christmas.

The mother proposes that in 2021 and in each alternate year thereafter the children should be in her care from 5pm on Christmas Eve until 5pm on Christmas Day and with the father from 5pm on Christmas Day until 5pm on 26 December 2021.
It follows that in 2020, the children would be in the father’s care from 5pm on Christmas Eve until 5pm on Christmas Day and with the mother from 5pm on Christmas Day until 5pm on Boxing Day.
The father’s proposal is, in part, contingent upon his proposal for the Christmas 2020 school holidays which I have not accepted.
The father’s family has made arrangements to spend the Christmas period on the H Region where they have extended family members. For that reason, the father proposed that the children live with him for the first half of the holidays and spend the time with the extended paternal family on the H Region. Counsel for the father submitted that it would be impractical to require that the father return the children to Sydney at 5pm on Christmas Day, wait in Sydney and then return to the H Region with them at 5pm on 26 December. I accept that submission.
However, as I have already rejected the father’s proposal in relation to the first half of the Christmas holidays in 2020 that submission falls away.
The order will provide for the children to spend time at Christmas as the mother proposes. That has the effect that, if the father so elects, the children will be in his care from 5pm on Christmas Eve until 5pm on Christmas Day in 2020. If the father prefers to spend the Christmas period with his family on the H Region, then the children will remain in the mother’s care. The father will be required to notify the mother of his election by 24 November 2020.
If one of the four day periods to which the children and the father are entitled pursuant to these orders occurs when the extended paternal family are on the H Region, then that time can be spent by the father and the children on the H Region.

The frequency of video communication.

Both parties agree that the children should have video communication with the father on Tuesdays and Thursdays at 6.30pm.
The mother proposes that they should also have video communication with the absent parent on Saturday. The father does not agree.
On behalf of the father, counsel submitted that video communication with the mother, on the one night in each fortnight when they are with him, is an unwarranted intrusion into their time with him.
I do not accept that submission.
It is important to normalise, for the children, the experience that when they are in their mother’s care they will have video communication with their father and that when they are in their father’s care they will have video communication with their father. That will become of increasing importance when the children are spending extended holiday periods with each parent.
The orders will provide that the children have video communication with the parent who is not caring for them on Tuesdays Thursdays and Saturdays at 6.30pm.

Whether there should be an order requiring the father to care for the children if the mother is hospitalised.

The father seeks an order that would oblige the mother, in the event that she is hospitalised or otherwise unable to care for the children, to notify him and give him the option of caring for the children.
The mother opposes that application.
The last time that the mother was hospitalised was when Y was born. The maternal grandmother stayed in the mother’s home and cared for X. The father’s time with X continued as usual.
There is no evidence that established that the mother has any medical conditions that are likely to require her to be hospitalised in the future.
In the event that she is temporarily unavailable for the children, there can be no doubt that she will make appropriate arrangements for their care.
The parents have agreed that they should have equal shared parental responsibility for the children. This concession carries with it an acknowledgement that each accepts that the other can, and will, make appropriate arrangements to care for the children.
I do not propose to make an order that will fetter the mother’s parenting responsibility as sought by the father.

Whether the parents should each be restrained from relocating.

The father seeks an order in the following terms:
Each party shall notify that other party in writing, no less than four (4) weeks in advance of a proposed relocation of the children’s residence, including provision in writing of the precise address to which the party proposes to move with the children no less than four (4) weeks in advance of the proposed changes of residence.
and
The parties agree that neither party will relocate of the children’s residence outside the Sydney metropolitan area unless with the written consent of the other party or otherwise by Court order.
I do not consider it necessary to make such an order.
The parents have equal shared parental responsibility. They must agree about major long term decisions for the children and the ambit of those decisions includes:
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
Each of the parents is entitled to live where he or she chooses, subject only to the caveat set out above.
Provided that a change of residence would not make it significantly more difficult for the children to spend time with the other parent, then each is free to live where they like.
I do not propose to make the order which the father seeks.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 4 August 2020.

Associate:

Date: 04/08/2020