Karllsson and Karllsson (No 2)

[2014] FamCA 1103

FAMILY COURT OF AUSTRALIA

KARLLSSON & KARLLSSON (NO. 2) [2014] FamCA 1103

FAMILY LAW – CHILDREN – Interim Orders – parental responsibility – where mother seeks an order for parental responsibility in respect of discrete issues – whether “parallel parenting” appropriate – presumption of equal shared parental responsibility applies – each party responsible for day to day care of the children while in their care – no order for sole parental responsibility.

FAMILY LAW – CHILDREN – Interim Orders – with whom a child spends time – father sought to increase time spent with children in intervening week to overnight time – consideration of best interest of the child – need to maintain a meaningful relationship – whether parties able to meet the emotional and intellectual needs of the children – conflictual relationship – ongoing assistance of psychologist to resolve parenting disputes – orders made for the father to have substantial and significant time with the children.

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

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Karllsson

RESPONDENT: Ms Karllsson

FILE NUMBER: ADC 43 of 2013

DATE DELIVERED: 2 December 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 2 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Suke

SOLICITOR FOR THE APPLICANT: Mills Oakley Lawyers Pty Ltd

COUNSEL FOR THE RESPONDENT: Ms Miller

SOLICITOR FOR THE RESPONDENT: Norman Waterhouse Lawyers

Orders

Upon Noting

1. that the parties are agreed that they will both undertake an assessment by a forensic psychiatrist;

2. the parties are encouraged to continue obtaining assistance from Mr D in order to resolve difficulties and disputes concerning their parenting.

BY CONSENT IT IS ORDERED THAT

1. Each party facilitate and promote reasonable telephone communication between the children and the other party when the children are in his or her care, including but not limited to, mobile telephone, Skype or other electronic means communication between 5.00 pm and 6.00 pm on each Monday and Friday when the children are not in their care and the other party facilitate this communication by ensuring that the children are available either on the landline, mobile or Skype to take the call at such times and further to do all things necessary to facilitate and promote such contact and in the event that the children are not available to take such call at that time the party ensure that the children contact the other party on their mobile telephone as soon thereafter as practicable PROVIDED THAT the mother be at liberty to contact the children on Sunday evening.

2. Both parties are to provide the other party no less than seven (7) days’ notice in writing in the event that that party is unable to care for the children for more than 48 hours during the period when the children are living with that party and in that event the other party shall have the first option to care for the children during that period and the communication between the parties confirming the arrangement for the care of the children should take place not less than 48 hours after receiving the notification.

IT IS FURTHER ORDERED PENDING FINAL ORDERS AND SAVE AS OTHERWISE AGREED BY THE PARTIES IN WRITING OR BY EMAIL THAT

1. All current parenting orders be and are hereby discharged.

2. The parties have equal shared parental responsibility for the children B born … 2007 and C born … 2010 (“the children”).

3. The children live with the father during school terms as follows:

   5.1until the commencement of Term 2, 2015:

   (a)in week one of a two week cycle;

   (i)     from the conclusion of school on Friday commencing Friday 28 November 2014 (or 3.30 pm if the children do not attend school / Early Learning Centre (“ELC”) on that day) until the conclusion of school on the following Monday (or 3.30 pm if the children do not attend school / ELC on that day); and

   (ii)    on Wednesday commencing 26 November 2014 from the conclusion of school (or 3.30 pm if the children do not attend school / ELC on that day) until 6.30 pm;

   (b)in week two of a two week cycle from the conclusion of school on Wednesday commencing 3 December 20914 (or 3.30 pm if the children do not attend school / ELC on that day) until the conclusion of school (or 3.30 pm if the children do not attend school / ELC on that day) on the following Thursday;

   5.2from the commencement of Term 2, 2015;

   (a)in week one of a two week cycle from the conclusion of school on Friday commencing Friday 1 May 2015 (or 3.30 pm if the children do not attend school / ELC on that day) until the conclusion of school on the following Monday (or 3.30 pm if the children do not attend school / ELC on that day); and

   (b)on each Wednesday from the conclusion of school (or 3.30 pm if the children do not attend school / ELC on that day) until the conclusion of school on the following Thursday (or 3.30 pm if the children do not attend school / ELC on that day);

   5.3from the commencement of Term 4, 2015;

   (a)in week one of a two week cycle from the conclusion of school on Thursday commencing 23 July 2015 (or 3.30 pm if the children do not attend at school on that day) until the conclusion of school (or 3.30 pm if the children do not attend school on that day) on the following Monday; and

   (b)in week two of a two week cycle from the conclusion of school on Thursday commencing 30 July 2015 (or 3.30 pm if the children do not attend school on that day) until the conclusion of school (or 3.30 pm if the children do not attend school on that day) on the following Friday.

4. During school terms the children live with the mother at all other times.

5. The children live with the mother as follows during the 2014/2015 Christmas School holidays which commence on 9 December 2014 and conclude on 29 January 2015:

   7.1for eight (8) nights from 12 Noon on Wednesday 17 December 2014 to 11.00 am on Thursday 25 December 2014;

   7.2for eight (8) nights from 12 Noon on Friday 2 January 2015 to 5.00 pm on Saturday 10 January 2015;

   7.3for eleven (11) nights from 12 Noon on Monday 19 January 2015 to the conclusion of school (or 3.30 pm if the children do not attend school / ELC on that day) on Friday 30 January 2015;

   the children live with the father for the remainder of the school holiday period and that the alternate weekend time with their father recommence at the conclusion of school (or 3.30 pm if the children do not attend school / ELC on that day) on Friday 30 January 2015.

6. The parents’ responsibilities include but are not limited to the following:

   8.1the parent with whom the children are living shall have the sole responsibility for making day to day decisions about matters affecting the children’s care, welfare and development which are not major long term issues;

   8.2a parent’s responsibility for making day to day decisions commences upon that parent’s designated time with the children pursuant to these orders and concludes when the children are collected by the other parent to commence their time with the children;

   8.3each parent shall inform the other of any illness and / or medical treatment during the children’s time with that parent by email prior to changeover and provide any medication which is required to be administered on a continuing basis.

7. The father provide one week’s notice to the mother’s solicitors in the event that Ms Karllsson Senior is unable or unwilling to assist the parties with handovers on any occasion and the mother shall forthwith engage Ms Q to conduct those handovers that do not otherwise occur at school or ELC.

8. Notwithstanding any other orders:

   (a)the children spend time with their mother for Mother’s Day from 4.00 pm on the preceding Saturday to the commencement of school the following Monday;

   (b)the children spend time with their father for Father’s Day from 4.00 pm on the preceding Saturday to the commencement of school the following Monday;

   (c)the children spend time with their father on Easter Saturday from 11.00 am to 4.00 pm that day.

9. Save in any emergency each of the parties be restrained from taking the children or either of them for medical and ancillary treatment other than to:

   (a)Dr R, the treating General Practitioner;

   (b)Dr L, the treating Urologist;

   (c)Dr A, the treating paediatrician;

   (d)Dr S, the children’s treating dentist;

   (e)Ms T, Psychologist;

   (f)Mr U, Psychologist;

   (g)Mr J, Occupational Therapist;

   (h)Ms V, Occupational Therapist;

   (i)General Medical Practitioners at W Medical Centre;

   (j)Dr X, Ear, Nose and Throat Specialist;

   (k)Ms Y, Tutor

   (l)Professional Staff from “[Z Program]”.

10. The father and the mother forthwith sign any and all such documents as may be required to enrol the child, C, at the ELC at BB School commencing Term 1, 2015 on Monday, Tuesday, Thursday and Friday of each week or on such further or other days as the parties may agree (depending upon the ELC’s availability) and thereafter do all such further acts and things as to ensure that C attends on the enrolled days.

11. Each party be at liberty to travel interstate with the children during the period the children are living with that party subject to the provision of not less than two (2) weeks’ prior written notice to the other party including a detailed itinerary, flights (if applicable) and contact details for the children whilst away.

12. Each party be at liberty to travel overseas with the children during the period the children are living with that party subject to the prior written consent of the other party which consent shall not be unreasonably withheld, PROVIDED THAT the party proposing to travel overseas with the children provides to the other party not less than four (4) weeks’ prior written notice including a detailed itinerary, flight details and contact details for the children whilst away

13. All interim applications are otherwise dismissed SAVE AND EXCEPT as to the question of costs to be listed at a later date upon request of both parties if necessary.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Karllsson & Karllsson (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 43 of 2013

Ms Karllsson  

Applicant

And

Mr Karllsson

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These are ex tempore reasons I give in relation to the applications of the parties I heard yesterday when counsel, Mr Strum and Mr Bartfield QC were in attendance. I indicated, due to the time limits yesterday, that I would not be able to deliver my reasons then. 

2. The matter concerns the welfare of the two children of the parties, B, who was born in 2007, and C, who was born in 2010. 

3. I have before me as interim matters the various applications of the parties, including the Further Further Amended Application in a Case and the Further Amended Response of the mother. I have taken into account all of the most recent documents in the Court file, including the affidavits of the parties to which are annexed various copies of the reports of the psychologist, Mr D.  This is an interim decision that the Court is required to make because the parties have been unable to agree interim orders concerning the welfare of the children.

4. By way of background I refer to the previous decisions that have been made in relation to these children, which includes the judgment which I delivered in relation to interim children’s orders in June 2013. These proceedings have been before the Court in relation to the children for nearly two years. There are also financial matters in dispute between the parties. The issues in relation to financial matters are currently one of the matters awaiting decision by the Full Court on appeal. 

5. The matter, however, before me today concerns the best interests of the two children of the parties. The background of the parties’ relationship and the indications about the litigation are to a certain extent set out in the judgment which I delivered in relation to interim children’s orders in June 2013, when specific detailed orders were made pending the determination of the final orders application. The orders set out specific detailed orders in relation to B and C with times being different at that stage due to the specific care issues arising in relation to each of the children. 

6. The matter, however, has come back before the Court with both parties seeking to alter the interim orders. This requires the Court to again consider the best interests of the children. 

7. The Court is required to take into account the best interests of the children as the paramount consideration. For that purpose section 60CC requires certain matters to be considered when making that determination. 

8. Both parties have sought that the orders include equal shared parental responsibility, although at one stage the mother’s documents contained reference to sole parental responsibility. I take into account the provisions of section 61DA, which require that when making a parenting order in relation to children, the Court must apply the presumption that it is in the best interests of the children for the child’s parents to have equal shared parental responsibility. 

9. There are certain bases upon which the presumption does not apply. In particular in section 61DA subsection (3) provides that when the Court is making an interim order the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making the order. In these circumstances, it is not appropriate for the presumption not to be applied. Therefore the presumption does apply and the parties should hereafter have equal shared parental responsibility.

10. The provisions of section 65DAA therefore apply in this matter. This provides for the Court to give consideration to the children spending substantial and significant, if not equal time, with each of the parents. 

11. Section 65DAC clearly sets out the provisions that apply if a parenting order is made. The parties need to consult each other if they have shared parenting about a decision and make a genuine effort to come to a joint decision about major long term issues. 

12. The Court needs to consider all the provisions of section 60CC. I will deal with those under the consideration of the various orders which the parties are seeking. I do not set out or read out today the proposals of each of the parties because of the length of the proposals of each of the parties. The Court received the further amended orders sought by the mother on 1 December 2014 and the father’s version of the orders which he sought (some of which contained only minor variations).

13. The material that the parties have provided in relation to the facts upon which the Court has to make the decision are in affidavits of the parties themselves and a copy of the letter and reports of Mr D which provided the Court with the updated opinions of the psychologist who has been attempting to assist the parties in making appropriate decisions concerning what is in the best interests of their children.  The Court only has that affidavit material before it. Much of the affidavits appear to be submissions or opinions of the parties.

14. As the Full Court said in Goode & Goode (2006) FLC 93-286 at paragraph 422:

    The procedure for making interim orders will continue to be an abridged process where the scope of the inquiry is significantly curtailed.  Where the Court cannot make findings of fact, it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.  Despite the lack of agreed factors and matters in dispute, the Court must still regard the best interests of the child as the paramount consideration.

15. There is little dispute about the father exercising parental responsibly, nor is there much dispute about the father spending significant time with the children.  It is the amount of time which he spends and how the parental responsibility is shared that the Court is required to determine in this case. 

16. The affidavits annex the reports and letter of Mr D, the psychologist who has been attempting to assist the parties in attending to their differences in relation to managing the care of the children. His report or letter dated 27 November 2014 to the solicitors for the parties refers to his previous letter at page 2 states:

    As you might be aware, the two factors that correlate the most …. with negative outcomes post-separation for children are the quality of parenting that children receive and the level of conflict to which they are exposed.  It has been my view that [the father] and [the mother], notwithstanding their differences, parent at a high enough level and both seem genuinely motivated to do what is best for their children, but that their conflict, personal and historical, is a major impenetrable obstacle to a more cooperative parenting relationship.

17. The report then continues to make certain recommendations, including for the parties to have an order for “parallel parenting”; the existing arrangements continue until the end of term 1 in 2015; that an increase in Wednesday extend to overnight in term 2 of 2015 and commencing in term 5 2015 the Wednesday night arrangement change to Thursday night, so that Mr Karllsson has four continuous nights with the children in week 1 of a two week cycle and then Thursday overnight in the other week. He then comments about the lack of cooperation and inability to communicate between the parties. The rest of his letters and report I have taken into account in attempting to make a decision which is based on the best interests of the children, setting aside the incapacity of the parents to overcome their difficulties in their relationship, which has a level of conflict which, according to Mr D, is continuing to have a negative effect upon the welfare of their children.

18. The Court has to balance the factors which are before it, which are not in dispute. It would therefore appear that the material which is most significant is the need for the children and the benefit to the children of having a meaningful relationship with both of their parents and the provisions of the Family Law Act 1975 (Cth) (“the Act”) which provide for the parents to have substantial and significant time, if not equal time. I take into account the young ages of the children and in particular C’s young age and the previous reference in the material before the Court as to the developmental difficulties of the children.

19. The orders which are sought deal with whether the time in which the father has with the children ceases on Monday morning when they return to school or concludes at 3.30 pm on that day (rather than in the morning). That applies to the various arrangements proposed during school term. The father proposed that the children’s time with him conclude at the conclusion of school or 3.30 pm and the mother sought that it conclude at the commencement of school or 9.30 am. The difference is presumably only related to the significant order that the parties have the day to day care of the children whilst those orders are operative. This would mean, for example, if the children were sick on the Monday morning, they would remain with the father, if that were one of his weeks, rather than be returned to the care of the mother.

20. In relation to the Christmas holiday times there are minor changes proposed during the school holiday times, but significantly the time is reasonably shared between the parties, as proposed by both of them, with slightly different dates.  In relation to the orders sought by the mother she requested that there be a specific reference to giving effect to the orders and having certain conditions apply, which included that any alteration to parenting arrangement must be by agreement between the parties evidenced in writing. I have considered that any change to the orders made should in any event be in writing to avoid or attempt to reduce the ongoing conflict between the parents.

1. In relation to the dispute between the parties as to the arrangements for telephone communication and when a parent is unable to care for a child, those were two matters to which the parties were able to agree. Those orders will be made as consent orders. 

2. It was then proposed that there be specific orders in relation to special days, such as Mother’s Day and Father’s Day, and special orders also made restricting the parents’ capacity to take the children for treatment by medical or ancillary medical treatment officers. All of these matters are matters which would normally be matters decided by parents in communications with each other and ought not to require the Court’s attention to such matters.

3. Similarly, in relation to C’s attendance at Early Learning Centre, there was a dispute as to whether that should be for four days or continue for three days.  The letter from a teacher making a recommendation is annexed to an affidavit, specifically indicating that, for C’s benefit, the increase to four days would be proposed from term 1 in 2015. 

4. In relation to the orders sought for psychiatric assessment, I have noted that the parties have agreed that they will each undertake a psychiatric assessment. It is not therefore appropriate nor necessary for the Court to consider the reasons for the Court or the jurisdiction of the Court to make an order in those terms. 

5. Similarly, there seems to be little dispute in relation to the parties’ capacity to travel interstate and overseas, save and except that there was dispute as to how much notice, if any, should be given for interstate travel. 

6. In relation to all of those matters I take into account the young age of the children, the background to their care and arrangements in the past. I consider that it is necessary that the parties keep the other informed in advance of significant matters such as holiday travel. 

7. I therefore turn to the consideration of the section 60CC factors, which the Court is required to take into account. Clearly the primary considerations are the benefit to the children of having a meaningful relationship with each of the parents. The orders proposed by each of the parties would provide for the children to have the benefit of a meaningful relationship and therefore this is not determinative in this matter, save and except that having a benefit of a meaningful relationship would usually encourage the parties to come to an agreement for the children to spend substantial and significant time with each parent. In this matter the need to protect the children from physical or psychological harm, from being subjected or exposed to, abuse, neglect or family violence is not a matter that is significant in the allegations of the parties before the Court at this stage. Therefore, it is not necessary to give the weight that is required by section 60CC(2)(a).

8. The additional considerations set out in subsection (3) include the views expressed by the children and any factors relevant to the weight that should be given to the children’s views. In this matter the children’s age and their development is such that their views would not carry considerable weight. As indicated, however, I accept that Mr D’s reports indicate that there is a risk the children’s views and factors impacting on those views may be affected by the ongoing conflict between the children’s parents. 

9. The nature of the relationship of the children with each of the parents and other persons. It appears from all of the material before the Court that it is acknowledged that the children have a good relationship with each of the parents and that that should be encouraged. 

10. Subsection (c) deals with the extent to which each of the children’s parents have taken or failed to take the opportunity to participate in making decisions about major long term issues or to spend time with the child or to communicate with the child.  It is clear that both parents have sought to, and have attempted to, participate in making decisions, to spend time with the children and communicate with the children. That is not a determinative factor in this matter. 

11. Similarly, subsection (ca), the extent to which each of the child’s parents has fulfilled or failed to fulfil the parents’ obligation to maintain the child is not a significant factor in this matter. 

12. The likely effect of any change in the circumstances of any separation from either of the parents or any other child is mostly significant in this matter in relation to C. However, the different proposals of each of the parties do not rely on this factor.  It is clear from the proposals of each of the parties that it is now considered that B and C should, where possible, spend the same time together with the father and when they are not living with the mother. 

13. Subsection (e); the practical difficulty and expense of the child spending time or communicating is certainly not a factor in this matter. 

14. Subsection (f); the capacity of each of the child’s parents to provide for the needs of the child, including the emotional and intellectual needs. This is clearly a difficulty in this matter for both parents due to the ongoing conflict that exists between them and the impact that this ongoing conflict has upon their capacity to provide for the proper emotional intellectual and psychological needs of the children.

15. The other factors in subsection (g) and (h) and (j) and (k) are not relevant. 

16. The attitude to the child and to the responsibilities of parenthood demonstrated by each of the children’s parents are factors in subsection (i). It is a concern that the parties’ attitude to the children and the responsibilities of parenthood are overridden by the ongoing conflict between the parties. 

17. Any other relevant matter. The Court considers that the best interests of the children nonetheless are such that the parties, having indicated that they have a wish to maintain a good relationship with the children and each party, that that relationship should be maintained and, where possible, limit further disagreement between the parties and, if possible, further litigation. 

18. Subsection (l); refers to whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children. It is clearly preferable in this case, as in most cases, that litigation between the parents cease and allow the parents to concentrate on matters relating to the children’s welfare rather than litigation between the two of them. It is therefore appropriate to conclude that the orders which should be made are those which would provide for the father to have substantial and significant time and ongoing involvement of both parents in the children’s welfare. 

19. In relation to the orders I will have it noted that the parties are agreed to undertake the forensic psychiatric assessments and encourage them to continue with obtaining the assistance of Mr D. 

20. In relation to the orders which are sought for the children to live with the father during school terms, I consider that taking into account the risk of difficulties occurring at handovers for the children at school or at the conclusion of school, that the orders proposed by the father meet the best interests of the children to have those times conclude at 3.30 pm rather than 9.30 am.

21. Similarly, in relation to the children spending time with the mother, the proposals which provide for the time to cease on a special day at 5.00 pm would also provide the opportunity for both parties to spend significant time with the children and an opportunity to each of them to enjoy some time with the children on a special day. 

22. I have also taken into account the provisions in relation to handovers, which were discussed and agreed that, if the father’s mother is unavailable, then the nominated person, Ms Q take over the obligations to assist the parties in carrying out the handover duties. 

23. I have not made specific orders in relation to the provisions for the orders concerning the extracurricular activities. The parties are unable to agree whether the children attend Greek lessons or other extracurricular activity or lessons.  It is in my view inappropriate at this stage, without clear evidence, for the Court to simply “toss a coin” in trying to decide what the parents cannot decide in relation to the extracurricular activities and language education. 

24. I take into account the ages of the children and the possibility that appropriate decisions can be made without much delay when the parents have further considered the orders that I am making today and attempt, with the assistance of Mr D to make decisions which emphasise the best interests of the children. 

25. Taking all of those matters into account, I am satisfied that the interim orders are orders which will be in the best interests of the two infant children.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 2 December 2014.

Associate: 

Date:  9 December 2014