Karney & Karney
[2024] FedCFamC2F 558
•7 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Karney & Karney [2024] FedCFamC2F 558
File number(s): PAC 1628 of 2018 Judgment of: JUDGE NEWBRUN Date of judgment: 7 May 2024 Catchwords: FAMILY LAW – PARENTING – Best interests of children. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA Cases cited: Saif & Saif [2020] FamCA 119 Division: Division 2 Family Law Number of paragraphs: 95 Date of hearing: 15 April 2024 and 22 April 2024 Place: Parramatta Counsel for the Applicant: Mr Battley Counsel for the Respondent: Mr Macarounas Solicitor for the Respondent: Rowlandson & Co Solicitors ORDERS
PAC 1628 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR KARNEY
Applicant
AND: MS KARNEY
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
7 MAY 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1.By consent, Order 5 of the Orders of 7 March 2024 is amended to read: “That W and X communicate with the father via Facetime between 5.00 pm and 5.30 pm each Thursday on each of their birthdays, on the father’s birthday, on the father’s partner’s birthday, on the paternal grandmother’s birthday, and on the paternal great grandmother’s birthday; such communication shall be effected by telephoning the mother’s mobile phone.
2.The father spend time with W born in 2012 and X born in 2014 (hereinafter “the children”) as agreed in writing between the parents, and failing agreement:
(a)For two weekends during the school term from 6.15 pm on Friday until 6.15 pm on the following Sunday (i.e. two nights) as agreed in writing between the parties but failing agreement on the fourth and eighth Friday of each school term, with such time to take place in Sydney or in Region B for the first two visits and thereafter on an alternating basis between Sydney or Region B and Region C;
(b)For seven days in the autumn, winter, and spring school holidays:
(i)First, commencing at 10.00 am on Sunday 7 July 2024 and concluding at 10.00 am the following Sunday, with such time to be spent in Sydney or in Region B;
(ii)Thereafter, commencing at 10.00 am on the first Sunday of the school holidays and concluding at 10.00 am the following Sunday, with such time to be spent in Region C;
(c)For seven days in the end of year school holidays, with such time to be spent in Region C:
(i)In even numbered years, commencing at 10.00 am on 22 December and concluding at 10.00 am on 29 December;
(ii)In odd numbered years, commencing at 10.00 am on 29 December and concluding at 10.00 am on 5 January the following year.
3.Changeover shall occur as agreed in writing between the parents, and failing agreement:
(a)If time is to be spent in New South Wales, with the father collecting the children from the mother at E Reserve, Suburb D at the commencement of his time and delivering them to the mother at the same location at the conclusion of his time;
(b)If time is to be spent in Region C, then unless otherwise agreed:
(i)The mother shall deliver the children to the father at Sydney Airport at the commencement of the father’s time and collect them from the father at Sydney Airport at the conclusion of the father’s time.
4.In May of each year, the children shall spend Mother’s Day weekend with the mother, and in the event that Mother’s Day falls on a weekend that the children would otherwise spend with the father pursuant to these Orders, such time with the father is postponed to the following weekend.
5.In September of each year, the children shall spend Father’s Day weekend with the father, and in the event that Father’s Day falls on a weekend that the children would not otherwise be spending time with the father in Region C pursuant to these Orders, such time shall occur in Sydney or in Region B from 6.15 pm on Friday to 6.15 pm on the following Sunday.
6.Pursuant to s 65Y(2) of the Family Law Act 1975 (Cth), the mother and the father shall be permitted to travel with the children out of the Commonwealth of Australia but not until 2025.
7.The mother shall hold and retain the children’s passports, subject to Order 8 herein.
8.For the purposes of the father travelling outside of the Commonwealth of Australia with the children, the mother is to provide the father with the children’s passports not less than 14 days prior to the proposed departure date and the father shall return the children’s passports within seven days of his return to Australia with the children.
9.For the purposes of the father’s time with the children in Region C, the father shall:
(a)Provide the mother with flight details including copies of return tickets for the children no later than 21 days prior to the proposed travel;
(b)Unless otherwise agreed, accompany the children on such travel.
10.The parties are restrained from:
(a)Denigrating the other party, members of the other party’s household or family, or the children in the presence or hearing of the children, and shall remove the child from the presence or hearing of any third party who may do so;
(b)Discussing with the children these proceedings or allegations raised in these proceedings, or allowing the children access to, or informing the children of the contents of documents filed or prepared for the primary purpose of these proceedings.
11.Each party shall do all things and sign all documents necessary to authorise and direct any school attended by the children to discuss with the other party the children’s school attendance and progress, furnish reports, photos and copies of any correspondence, newsletter or other written material produced by the school and distributed to carers and both parties shall be entitled to fully participate in all and any activities at the school or connected with the school.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
This final hearing relates to the children W born in 2012 and X born in 2014. W and X are the younger two of the parties’ four children.
The parties separated in 2017. In early 2020, the father relocated from Sydney to Region C, where he resides with his partner. The children reside with the mother in Sydney.
The matter was previously listed for final hearing, but not reached, on 7 March 2024. On that date, the parties were able to reach agreement as to a majority of the matters in dispute, and accordingly orders were made by consent that:
(a)The mother have sole parental responsibility for all four children;
(b)The children live with the mother;
(c)The two eldest children, Y and Z, spend time and communicate with the father in accordance with their wishes;
(d)The two youngest children, W and X, communicate with the father via Facetime each Thursday evening and on special occasions.
The balance of the issues in dispute related predominantly to arrangements for W and X (hereinafter “the children”) to spend time with the father; namely, how often this should occur, and to what extent such time should occur in Region C.
PROPOSALS
The father seeks orders as set out in his Minute of Order, inter alia, that the children spend time with him in Region C for one weekend each month during school term, and for one week during each school holiday period.
The mother seeks orders as set out in her Case Outline filed 5 March 2024, inter alia, that the children spend time with the father in Sydney or Region B for one weekend of each school term, and a graduating scheme of time in the school holiday periods commencing with several nights in Sydney or in Region B, and building up to a maximum of five nights from 2026, with such time able to occur in Region C.
MATERIAL RELIED UPON
The father relied upon:
(a)Precise Minute of Order;
(b)Affidavit of father filed 2 February 2024;
(c)Father’s case outline dated 6 March 2024;
(d)Father’s outline of adjourned case filed 14 April 2024.
The mother relied upon:
(a)Response to Initiating Application filed 1 February 2022;
(b)Her affidavit filed 8 February 2024;
(c)Notice of Risk filed 1 January 2022;
(d)Child Impact Report of Ms F dated 28 April 2022;
(e)Family Report of Mr G dated 15 September 2023;
(f)Case Outline filed 5 March 2024.
The following documents became exhibits:
(a)Exhibit A: Psychologist’s report of Ms H dated 5 February 2024;
(b)Exhibit B: Child Impact Report of Ms F dated 28 April 2022;
(c)Exhibit C: Family Report of Mr G dated 15 September 2023.
EVIDENCE
In determining this case, the Court has had regard to all the written evidence referred to above together with the oral evidence given. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact the Court is required to assess the evidence on the balance of probabilities. In order to limit the size of this judgment not all factual issues will be addressed, and the Court will not set out the entirety of the evidence. Evidence of the parties relevant to the Court’s determination will be considered either in this section or whilst addressing the section 60CC considerations (ie section 60CC of the Family Law Act 1975 Cth (“the Act”)) (see below). In the event of any conflict between the evidence in this section and evidence referred to under the Court’s discussion under section 60CC, the latter evidence shall take precedence.
Evidence of the father
The Court does not propose to set out the entirety of the father’s affidavit and oral evidence.
The father deposed that the three youngest children have a great relationship with both his partner Mr J and himself. He stated that his partner and himself travelled down to Sydney every four weeks to spend time with the children. He states that over the past year he has been consistent in seeing the children every four weeks and calling them every week. He stated that all the children seem to be capable of having sleepovers away from home at friends’ houses, school camps and at the (mother’s) parents’ home in Region K on many occasions for up to a week at a time.
The father conceded that it would take the mother about an hour and half to drive the children from her residence at Suburb L to Sydney airport so as to deliver the children to the father there at 6.15 pm on a Friday evening. The father stated it was a 30 minute drive from Region C airport to his residence.
The father conceded that his communication with the mother is almost non-existent. Presently at changeovers the parties do not speak to each other directly.
The father conceded that the last overnight time he spent with the two youngest children was in early 2020.
The husband stated he spent about 16 hours in total with the children in 2020. In 2021 this went to about 18 hours. He spent about 39 hours with the children in 2022, and in 2023 about 120 hours. He stated that in 2023 he saw the children once every four weeks on a Saturday.
The father stated that if the two youngest children were spending time with him in Queensland for two nights and something happened, for example, that W was struggling with the overnight time, he would call the mother. In this context the father stated that every time he had time with the children after 2018 and they were injured or sick he always told the mother.
The father stated that if, for example, the child W was struggling and not coping and he really wanted to come back to the mother (from Queensland), he would contact the mother and they would work out a time for that child to return home to the mother; he would book the first flight back to Sydney.
The father agreed that it would be best if the first time the children had overnight time with them was in an environment that they were familiar with. He agreed that they were familiar with his mother’s residence.
The Court asked the father whether he thought it would be helpful for the two youngest children to begin their overnight time with him at his mother’s home. The father replied “for a couple of visits, most likely.” Clarifying, he agreed that two monthly visits, for example, at his mother’s home in Region B, would be helpful.
Evidence of the mother
The Court does not propose to set out the entirety of the mother’s affidavit and oral evidence.
The mother stated that she is not anxious about the children spending time with the father in Region C. She stated that her problem in this regard was that the father had not had overnight time with the children for four years. She agreed that the reason they have not spent time with the father overnight in the past four years was because she opposed it.
The mother was asked what it was about Region C that prompted her to oppose it, and she stated that it was the travel, the time, the fact that it has been untested, and that the children had not had overnight time yet.
The mother stated that the two youngest children spending time with their father in Region C would be anxious “to a degree.” In this context she stated that Region C was a new environment, a different environment, and the children had not done it.
The mother stated that she attends upon a psychologist once a month and that she has been attending upon a psychologist for some years.
The mother stated she attempted to enrol in the Circle of Security program a few months ago.
Child Impact Report
This report was dated 28 April 2022 and was prepared by Family Consultant Ms F.
The Family Consultant conducted separate meetings for both parents remotely in early 2022, and she had a meeting with the children in the form of separate interviews in early 2022 and follow-up discussions with each parent remotely in early 2022.
The Court does not propose to set out the entirety of the Child Impact Report.
The Family Consultant stated, inter alia:
2.The children live with [Ms Karney] and [Y], [W], and [X] have been spending time with [Mr Karney] in Sydney on an ad hoc basis and communicate with him via telephone at least once per fortnight.
…
5.[Mr Karney] relocated to Queensland, from Sydney, in early 2020. It appears that the children’s time with [Mr Karney] was significantly adversely impacted by restrictions relating to the COVID-19 pandemic, with [Ms Karney] estimating that the children had spent time with [Mr Karney] on approximately five occasions since he relocated.
…
21.While [Mr Karney] reported that the extended maternal family were controlling during the relationship (e.g. that Christmas would be spent with them and not the paternal family or decision making regarding his and [Ms Karney]’s wedding to exclusion of his family), neither parents’ account was suggestive that either of them had perpetrated family violence, coercion or control against the other.
…
24.The children’s relationships with [Mr Karney], and consequently their views regarding spending time with him, appear to have been adversely impacted by his relocation and consequent reduction in time with him. However, it does not appear to be in dispute between the parents that [Y], [W], and [X] want to spend regular time with [Mr Karney], which is consistent with the children’s stated views, rather the primary issue in dispute appears to be the frequency at which the children should currently spend time with [Mr Karney] and the manner in which the children’s time with him should progress.
…
29. [Mr Karney] presented as attempting to consider the children’s needs in his proposals and indicated that he had incorporated information from the children’s treating psychologist into his proposals (e.g. that overnight time initially occur at the paternal grandmother’s residence before progressing to Queensland) in order to support the children to adjust to changes in spend time arrangements.
…
31.The children spending time with [Mr Karney] once per month, as he proposed, would provide increased opportunities for the children to maintain meaningful relationships with him and to adjust to separating from [Ms Karney] in order to spend time with him… As such, while the children would ideally spend time with [Mr Karney] once per month, this would only be recommended if [Mr Karney] is able to commit to such an arrangement.
The report of psychologist Ms H, clinical psychologist, dated 5 February 2024 (Exhibit A)
The Court does not propose to set out the entirety of this report.
This report was requested by the mother’s solicitors on 31 January 2024.
The psychologist had historically provided psychological treatment for the children. She also referred to providing ongoing treatment for the children.
The psychologist referred to W, an 11-year-old male, commencing psychological therapy in mid-2018 and who had attended 30 sessions to date, his last session being in early 2024.
The psychologist referred to X, a 9 year old female, who had commenced psychological therapy in late 2020 and attended 15 sessions in total, her last session being late 2020.
The psychologist stated that her report briefly summarises the children’s treatment and progress to date, and outlined recommendations for future treatment.
The psychologist stated that the mother has organised all treatment sessions for the children and has implemented recommended strategies at home.
The psychologist stated that W has responded well to treatment and reports reduced levels of anxiety. He has learnt to effectively identify anxiety symptoms and implement de-arousal and cognitive challenging strategies to stabilise his mood. At the last treatment session, W reported that he felt well equipped to start high school and was able to identify and challenge negative thinking patterns. He also expressed some concern regarding upcoming school camp but was able to recognise the importance of approaching the challenge rather than avoiding it, noting the role that avoidance plays in maintaining anxiety. She stated that W’s relationship with his father appears to be generally stable, with him describing the monthly day visits favourably and reflecting on them positively. Overall, W has made excellent progress in managing his anxiety, and only requires occasional treatment sessions to manage specific triggers.
The psychologist stated that she cannot comment on X’s current mental health as she has not consulted her since late 2020. At that time she was adequately managing symptoms of separation anxiety, and sleeping alone in her own bedroom with the door open. She did not express any concerns seeing her father during the day at this appointment and her mother reports that she is currently managing well, with no need for regular ongoing treatment.
Family Report
The Family Report was prepared by Regulation 7 Family Consultant Mr G. His report is dated 15 September 2023. He conducted in person interviews with the family in Sydney on 30 August 2023. One of the documents read by the Family Report writer was the above Child Impact Report.
The Court does not propose to set out the entirety of the Family Report.
Under the heading “Context of the child and family”, the Family Report writer stated:
2.The parents commenced a relationship in 2003 and separated in 2017. Court orders were made in 2018 for the children to live with the mother and spend time with the father each alternate weekend.
3. The father relocated from Sydney to [Region C] in 2020.
4.The children currently live with their mother and spend time with their father one day each month in Sydney from 8:00am to 5:00pm. [Z] is at liberty to determine the times he spends with his father. Changeover between parent’s occurs via the mother’s home.
5.The mother lives in Sydney and is married to [Mr M] aged (born [in] 1987). She works [as an allied health worker]. [Mr M] has two children from previous relationships, [O] aged 7 years and [P] aged 4 years who spend time with him from Friday to Sunday each alternate weekend.
6.The father lives [in Region C] with his partner [Mr J] aged 43 years (born [in] 1980). He works full-time in the [allied health] sector.
Under the heading “Proposals of the parties”, the Family Report writer stated:
11.The father proposed that the children spend time with him one weekend every four-week cycle from 5:00pm Friday to 5:00pm Sunday. He suggested that this time alternate between occurring [in Region B] and [Region C]. The father indicated a willingness for [Z] to be at liberty to determine spend time arrangements.
12.The mother reported a belief [Y], [W] and [X] should spend two additional two-day blocks of time with the father in New South Wales prior to considering any progression of time. She did not provide a definitive proposal in relation to longer-term arrangements.
Under the heading “Risk of family violence”, the Family Report writer said:
18.[Ms Karney] denied perpetrating or experiencing any abuse during her relationship with the father or following their separation. She reported feeling safe in the father’s presence.
Under the heading “Mental health”, the Family Report writer stated:
29.[Ms Karney] reported that she engages with a psychologist for feelings of stress and anxiety. She indicated a belief this does not impact on her parenting in a “negative” way and is something she manages independently.
The Family Report writer interviewed W then aged 11 years. The Family Report writer stated:
76.[W] described spending time with his father as “good”. He reported feeling safe with his father and said that he particularly enjoys going to [amusement centres] with him.
77.[W] stated that he would be “fine” to spend time with his father [in Region B] and “fine” to spend time with him [in Region C]. He said that he knows his father, he “properly” knows him and overnight time in his care would be “okay”.
The Family Report writer interviewed X then aged 9 years, and stated:
81.[X] reported feeling safe with her father and [Mr J]. She described both her father and [Mr J] as “fun” and said that she enjoys celebrating birthdays and going to the park with them.
82.When I talked to [X] about the possibility of spending time with her father in Sydney and/or [Region C], [X] stated that she would be “happy” to spend time with her father [in Region C]. She expressed hopes of seeing “what it is like” [in Region C].
Under the heading “Evaluation”, the Family Report writer stated:
97.… I did not identify any risks to the children’s safety which should preclude them from spending substantial time with either parent.
98.[Y], [W] and [X] appear to share positive relationships with their father. They delighted in each other’s company during observations, reported feeling safe in his presence and indicated an openness to spend overnight time in his care. Whilst the mother highlighted significant concern about the children’s capacity to cope with changes to parenting arrangements, this was not congruent with my assessment. I did not get the sense that the children were in any way apprehensive in relation to travelling interstate and/or spending overnight time in his care. The children were spending each alternate weekend in the father’s care prior to him relocating to Queensland in 2020.
…
102.The central issue in this matter appears to be in relation to whether the children can cope with extended blocks of time in the father’s care; or whether the mother is unnecessarily obstructing spend-time arrangements due to her own feelings of anxiety. …
106.I did not get the impression [Y], [W] and/or [X] were anxious or apprehensive in relation to spending overnight time or travelling interstate with their father. The mother presented as anxious, however, cried profusely when discussing the father’s proposal for overnight time and indicated a belief that parents cannot “protect” their children “forever”. The mother suggested that the children would need “more therapy” if overnight time with the father is ordered. In the absence of any immediate risks to the children’s safety in the father’s care, however, I would not describe her actions as protective and would not endorse her proposal for the children to receive therapy. There may be some teething issues as the children adjust to new arrangements including resistance, fatigue and/or irritability though this should pass if the children are supported to enjoy time with their father and feel safe in his care. If [W] does experience feelings of anxiety caused by uncertainty, he could benefit from arrangements which are prescriptive and occur reliably.
107.I would suggest that the mother undertakes a circle of security program so that she can learn how her own emotional responses influence her parenting and how she can balance being nurturing with promoting the children’s independence. After the mother completes this program, I would recommend she engages in one-to-one support from a mental health practitioner to address needs in relation to her mental health. The relevant practitioner should be provided with a copy of this report.
108.… The mother believes that any progression of the children’s time with the father needs to be “gradual” so that are not overwhelmed emotionally. Given that the children ages range from 9-16, however, they should have a greater capacity to independently regulate their responses and spend longer blocks of time, up to one week, in the father’s care and away from their mother.
109.The father is proposing that the children spend a combination of time with him and paternal family members [in Region B], and at his residence [in Region C]. The father indicated that he would fly to Sydney to accompany the children during flights and absorb the costs of travel. He reported that the accommodation arrangements are suitable, and it is his responsibility to meet the children’s needs whilst they are in his care. The father’s proposal would entail that the children spend two nights in his care each 28-day cycle with additional time on school holidays. I did not identify any substantive risk issues which should preclude the children from spending overnight and/or substantial time in his care.
Under the heading “Recommendations”, the Family Report writer stated, inter alia:
115. [Y], [W] and [X] communicate and/or spend time with the father:
i.Via phone and/or video call a minimum of once per week and any other time they initiate a call.
ii.From 5:00pm Friday to 5:00pm Sunday once every four weeks. This could alternate between occurring [in Region B] and [Region C].
iii. For one week each school holiday.
116.Changeover between parents occurs via Sydney airport or a neutral location as agreed by the parents.
The Family Report writer gave oral evidence. The Court does not propose to set out the entirety of that evidence.
The Family Report writer gave the following evidence in relation to his recommendation at paragraph 115(ii) that the three youngest children could spend time with the father from 5.00 pm Friday to 5.00 pm Sunday once every four weeks and this could alternate between occurring [in Region B] and [Region C]:
[HIS HONOUR] What did you mean in that second sentence at paragraph 115(ii):
This could alternate between occurring [in Region B] and [Region C].
Did you effectively mean that they could go to [Region B] during – at the end of one four-week period?
[WITNESS] Mmm.
[HIS HONOUR] And then, having gone to [Region B] in – after four weeks, they could go to [Region C] at the end of the next four weeks. Is that what you meant?
[WITNESS]I – I didn’t mean it to be that prescriptive, your Honour.
[HIS HONOUR] Right?
[WITNESS] It could be at the father’s discretion.
[HIS HONOUR] Right?
[WITNESS]I don’t see there being any substantive issue for the children whether they spend time in [Region C] or [in Region B]. There may be occasions, or special occasions, that the father seeks to facilitate time with paternal family members or events of significance to them, and there could be some flexibility to do that.
The Family Report writer was questioned as to whether or not there should be a gradual progression of the children’s time with the father and this evidence was given:
[COUNSEL]Sorry – and does it change, or does your opinion concerning a gradual build-up of time – would that be changed by what was set out in the child impact report at paragraph 29, namely this:
[Mr Karney] presented as attempting to consider the children’s needs in his proposals, and indicated he incorporated information of the children’s treating psychologist into his proposals, eg, that overnight time initially occur at the paternal grandmother’s residence before progressing to Queensland in order to support the children to adjust to changes and spend time arrangements.
Does the father’s utterances to the court child expert in [early] 2022, when this report was made, cause you to change or express in a different opinion as to whether or not there ought to be a gradual progression from overnight time occurring in New South Wales [in Region B], before progressing to Queensland?
[WITNESS]It could. I don’t have a strong view on this. I think these are quite – I’m trying to consider my words, but they’re not – I know I’ve said this already, but they’re not substantive issues. I think – or I believe there just needs to be a plan to progress the children’s time with the father. Whether it occurs [in Region B] or [Region C], is not – it shouldn’t be the primary consideration. What needs to occur is for the children to spend more substantial time with their father. If both parents are more receptive to an arrangement that starts [in Region B], then that might be a way of getting the ball rolling, and if [W] has a positive experience of that, then that might build his confidence, but I wouldn’t necessarily rely on what he’s telling his mum in isolation, because he may have some sense of what her views are or what her position is, and he may be overly cautious about that progression of time.
The Family Report writer was questioned in relation to his impression (referred to in the Family Report) that the children did not have anxiety spending overnight time or time with the father in Queensland and this evidence was given:
[COUNSEL]Yes. And you didn’t ask, “Are you anxious about spending time [in Region C]?” to each of the children, did you?
[WITNESS]I didn’t ask, “Are you anxious about spending time?” I ask them their views in relation to time – whether it occurs [in Region B], [or Region] – and I used my own observations of – of the children and the responses, coupled with observations of their interactions with the father, and I did not get the sense that they were at all fearful or apprehensive in his presence.
The Court accepts the evidence of the Family Report writer subject to any view of the court expressed to the contrary, whether express or implied, as set out below in its discussions under s 60CC of the Act.
RELEVANT LEGAL PRINCIPLES
Section 60B of the Act sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Under section 60CC(2A) of the Act, the court, in applying the meaningful relationship primary consideration and the need to protect primary consideration under section 60CC(2) of the Act, is to give greater weight to the need to protect primary consideration.
When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. 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 that order: section 61DA(3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the court must consider making an order that the child spends substantial and significant time (as defined in section 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 section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the court may make such orders in the discretion of the court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.
The best interests of the children
Section 60CC(2) primary considerations
(2)(a) The benefit to the child of having a meaningful relationship with both of the child’s parents
In Saif & Saif [2020] FamCA 119, Foster J stated:
95.The reality is, in the context of this interim hearing, that the Court is obliged to have regard to the maintenance and promotion of the children’s relationships with both parents. A relationship may be less than optimal but nonetheless meaningful: (Godfrey & Sanders [2007] FamCA 102 at [33]-[36]; Sigley & Evor (2011) 44 Fam LR 439 at [182]).
96.In Mazorski v Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:
[26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
97.In McCall & Clark [2009] FamCAFC 92 at [121] the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
The children have meaningful relationships with the mother and will benefit from a continuance of those relationships. The mother has been the children’s primary carer and their primary attachment is to her.
The children have meaningful relationships with the father and will benefit from not only the continuance of those relationships but an enhancement of those relationships.
The father’s time with the children post-separation has been somewhat limited and he has not spent overnight time with the children since early 2020.
The children’s meaningful relationships with the father can be enhanced by making orders providing for a gradual progression of their overnight time with the father, who lives in Region C in Queensland. During school term times, should the children spend two nights with the father from 6.15 PM Friday until 6.15 PM the following Sunday on the fourth and eighth Friday of each school term, with such time to take place for the first two visits in Sydney or Region B, and thereafter, on an alternating basis, between Sydney or Region B and Region C in Queensland, there is a significant prospect that the children’s meaningful relationship with the father can be enhanced.
And further, should the children spend overnight time with the father for half of the short school holidays and for a week during the longer Christmas school holidays (as proposed by the father) but with such holiday time to be spent with the father initially in Sydney or Region B (ie initially in Sydney or Region B during the winter school holidays in 2024, with holiday time in Region C in Queensland to commence during the spring school holidays in 2024) there is a significant prospect that the children’s meaningful relationship with the father can be enhanced.
The Court is concerned that the mother’s proposal, providing that the children not spend time with the father during school term times in Queensland but only in Sydney or Region B, is too restrictive and will militate against the children’s meaningful relationships with the father being enhanced in a timely fashion; this is because the children will not be able to spend such time with the father in his own home and surroundings in Region C in Queensland where he works and lives with his partner. The Court is also concerned that the mother’s proposals relating to the children spending time with the father during the NSW school holidays are also too restrictive and increase too slowly, and will militate against the children’s meaningful relationships with the father being enhanced in a timely fashion.
The evidence of the Family Report writer is consistent with the Court’s views above.
The Court gives significant weight to this meaningful relationship primary consideration.
(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There are no relevant family violence allegations made in these proceedings.
The Court observes that historically the children have experienced some anxiety and have received psychological therapy. W had made according to his treating psychologist excellent progress in managing his anxiety. X at the time of her last consultation with the psychologist was adequately managing anxiety symptoms and the mother had reported that X had no need for regular ongoing treatment.
Should the children spend time with the father as discussed above under the meaningful relationship primary consideration, there is a significant prospect that the children should not experience significant anxiety or emotional neglect in the father’s care. In particular, by reason of the children’s overnight time with the father during school term times commencing initially in Sydney or in Region B, before progressing to Region C in Queensland, the risk to the children of experiencing significant anxiety or emotional discomfort can be minimised. This should also be the case in relation to the children spending overnight holiday time with the father, with such holiday time commencing initially in Sydney or in Region B before progressing to Region C in Queensland.
And further, the Court is satisfied that should the children, whilst spending time with the father, express to him that they are experiencing emotional discomfort and wish to speak to the mother and/or return promptly to her care, the father will likely, in a timely fashion, facilitate the children speaking with the mother and/or returning promptly to her care. The Court accepts the father’s evidence in this regard.
The Court takes into account that the Family Report writer did not identify any substantive risk issues which should preclude the children spending overnight and/or substantial time in the father’s care. Broadly, the evidence of the Family Report writer was consistent with the Court’s above views.
Section 60CC(3) additional considerations
(3)(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The Court takes into account the children’s views as expressed to the Family Report writer in relation to spending time with the father. The Court would give some weight to each of their views.
In this context, the Court takes into account the evidence of the Family Report writer that the children indicated to him an openness to spending overnight time in the father’s care, and that the Family Report writer did not get the impression that the children were anxious or apprehensive in relation to spending overnight time or travelling interstate with the father.
(3)(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The Court refers to its discussions above under the meaningful relationship primary consideration.
(3)(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
The parties have taken such opportunities.
(3)(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The parties have fulfilled their obligations in this regard.
(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The Court refers to its discussions above under the above primary considerations, including under the above additional consideration relating to the views of the children.
Should the children spend time with the father as discussed above under the meaningful relationship primary consideration, the mother should not experience any significant anxiety and her parenting capacity for the children should not be adversely affected.
(3)(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The mother lives in Sydney and the father lives in Region C in Queensland. This geographical issue obviously poses a practical issue in relation to the children spending time with the father during school term times.
(3)(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
The parties have such capacities.
(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
The Court refers to its discussions above under the need to protect primary consideration.
(3)(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Apart from Covid 19 restrictions affecting the children spending time with the father post separation, there is a significant suggestion, on the evidence before the Court, that otherwise, on occasion after separation, the mother’s personal anxieties in relation to the children spending time with the father, including spending overnight time with him, may well have had some impact in respect to her facilitating their time with the father, which anxieties were not objectively grounded. In this context, the Court refers to the evidence of the Family Report writer at paragraphs 106-107. However, the Court observes that with the passage of time the father’s daytime time with the children has increased and significantly so in 2023. Otherwise, the parties have usually demonstrated appropriate attitudes to the children and to the responsibilities of parenthood.
(3)(j) Any family violence involving the child or a member of the child’s family.
Not applicable.
(3)(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter.
Not applicable.
(3)(l) 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 child
In the view of the Court, the children’s time with the father as discussed by the Court above under the meaningful relationship primary consideration would be least likely to lead to the institution of further proceedings in relation to the children as compared, in particular, to the mother’s proposed orders.
(3)(m) Any other fact or circumstance that the Court thinks is relevant
The Court refers to the father’s proposal relating to the children’s time with the father during school term times occurring, on a monthly basis, potentially on each such occasion in Region C, Queensland where the father lives.
The Court has a significant concern that should the children be required, during school term times, to travel between Suburb L (a suburb in Sydney) and Region C Queensland, once a month, involving significant motor vehicle travel in addition to air travel, that their usual social and schooling routines will be adversely affected including arriving home from Region C Queensland on the Sunday close to 8.00 pm (assuming no travel delays).
And further, the Court has a significant concern that the father’s proposal in this regard would place an overly onerous burden upon the mother in having to drive the children to and from Sydney airport once a month, noting that she resides in Suburb L in Sydney. Such potential adversities can be minimised by the children, during school term times, ultimately only being required to travel to Region C Queensland effectively about once every two months (that is, about once each school term). In passing, the Court observes that the father at one stage of the proceedings had proposed the children spending time with him during school term times on an alternating basis between Sydney or Region B and Region C Queensland.
SUMMARY
Evaluating the above discussed considerations under section 60CC of the Act, the Court is of the view that it will be in the best interests of the children to make the following final parenting orders:
1.By consent, Order 5 of the Orders of 7 March 2024 is amended to read: “That W and X communicate with the father via Facetime between 5.00 pm and 5.30 pm each Thursday on each of their birthdays, on the father’s birthday, on the father’s partner’s birthday, on the paternal grandmother’s birthday, and on the paternal great grandmother’s birthday; such communication shall be effected by telephoning the mother’s mobile phone.
2.The father spend time with W born in 2012 and X born in 2014 (hereinafter “the children”) as agreed in writing between the parents, and failing agreement:
(a)For two weekends during the school term from 6.15 pm on Friday until 6.15 pm on the following Sunday (i.e. two nights) as agreed in writing between the parties but failing agreement on the fourth and eighth Friday of each school term, with such time to take place in Sydney or Region B for the first two visits and thereafter on an alternating basis between Sydney or Region B and Region C;
(b)For seven days in the autumn, winter, and spring school holidays:
(i)First, commencing at 10.00 am on Sunday 7 July 2024 and concluding at 10.00 am the following Sunday, with such time to be spent in Sydney or Region B;
(ii)Thereafter, commencing at 10.00 am on the first Sunday of the school holidays and concluding at 10.00 am the following Sunday, with such time to be spent in Region C;
(c)For seven days in the end of year school holidays, with such time to be spent in Region C:
(i)In even numbered years, commencing at 10.00 am on 22 December and concluding at 10.00 am on 29 December;
(ii)In odd numbered years, commencing at 10.00 am on 29 December and concluding at 10.00 am on 5 January the following year.
3.Changeover shall occur as agreed in writing between the parents, and failing agreement:
(a)If time is to be spent in New South Wales, with the father collecting the children from the mother at E Reserve, Suburb D at the commencement of his time and delivering them to the mother at the same location at the conclusion of his time;
(b)If time is to be spent in Region C, then unless otherwise agreed:
(i)The mother shall deliver the children to the father at Sydney Airport at the commencement of the father’s time and collect them from the father at Sydney Airport at the conclusion of the father’s time.
4.In May of each year, the children shall spend Mother’s Day weekend with the mother, and in the event that Mother’s Day falls on a weekend that the children would otherwise spend with the father pursuant to these Orders, such time with the father is postponed to the following weekend.
5.In September of each year, the children shall spend Father’s Day weekend with the father, and in the event that Father’s Day falls on a weekend that the children would not otherwise be spending time with the father in Region C pursuant to these Orders, such time shall occur in Sydney in Region B from 6.15 pm on Friday to 6.15 pm on the following Sunday.
6.Pursuant to s 65Y(2) of the Family Law Act 1975 (Cth), the mother and the father shall be permitted to travel with the children out of the Commonwealth of Australia but not until 2025.
7.The mother shall hold and retain the children’s passports, subject to Order 8 herein.
8.For the purposes of the father travelling outside of the Commonwealth of Australia with the children, the mother is to provide the father with the children’s passports not less than 14 days prior to the proposed departure date and the father shall return the children’s passports within seven days of his return to Australia with the children.
9.For the purposes of the father’s time with the children in Region C, the father shall:
(a)Provide the mother with flight details including copies of return tickets for the children no later than 21 days prior to the proposed travel;
(b)Unless otherwise agreed, accompany the children on such travel.
10.The parties are restrained from:
(a)Denigrating the other party, members of the other party’s household or family, or the children in the presence or hearing of the children, and shall remove the child from the presence or hearing of any third party who may do so;
(b)Discussing with the children these proceedings or allegations raised in these proceedings, or allowing the children access to, or informing the children of the contents of documents filed or prepared for the primary purpose of these proceedings.
11.Each party shall do all things and sign all documents necessary to authorise and direct any school attended by the children to discuss with the other party the children’s school attendance and progress, furnish reports, photos and copies of any correspondence, newsletter or other written material produced by the school and distributed to carers and both parties shall be entitled to fully participate in all and any activities at the school or connected with the school.
I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 7 May 2024
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