Keightley & Keightley (No 2)

[2012] FamCA 983

FAMILY COURT OF AUSTRALIA

KEIGHTLEY & KEIGHTLEY (NO 2) [2012] FamCA 983

FAMILY LAW – CHILDREN – final orders – parental responsibility – whether the presumption of equal shared parental responsibility in s 61DA has been rebutted – where the child has spent significant time with the father in the past – best interests – where the Court was not satisfied that the presumption has been rebutted – orders for the parties to have equal shared parental responsibility.

FAMILY LAW – CHILDREN – final orders – with whom a child lives and spends time – where the child currently lives with the father – where the child has expressed a wish to live with the mother – best interests – orders that the child live with the mother and spend regular time with the father.

Family Law Act 1975 (Cth) ss 60CC & 61DA

APPLICANT: Mr Keightley

RESPONDENT: Ms Keightley

INDEPENDENT CHILDREN’S LAWYER: Mr Charman

FILE NUMBER: ADC 4573 of 2008

DATE DELIVERED: 14 November 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 14 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: n/a

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Ms Subramaniam

SOLICITOR FOR THE RESPONDENT: Priya Subramaniam

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Charman

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ian Charman & Associates

Orders

UPON NOTING the mother supports P’s ongoing relationship with the paternal family.

1. All previous parenting orders are discharged.

1. The child P born on … April 2000 live with the mother.

1. The mother and father have equal shared parental responsibility for the child.

1. The father deliver the child and all his personal belongings to the mother at the mother’s residence by 6.00 pm on Friday 16 November 2012.

1. The child P to spend time with the father after school:

   (a)on two [2] occasions each week for the purpose of training attendance during the soccer season from after school each week when soccer training takes place until 8.00 pm or until the conclusion of the soccer training that evening;

   (b)once a fortnight on Thursdays during the non-soccer training season from after school until 8.00 pm;

   with the father to collect the child from school and return the child to the home of the mother at the conclusion of those sessions.

2. During school term the child spend time each alternate weekend with the father from after school on the Friday until the commencement of school on the Monday with the father to collect and return the child to school for those occasions.

1. The father is at liberty to attend at the child’s soccer game and participate in coaching at the child’s soccer game in the intervening weekend.

1. During the school holidays the child is to spend half the school holidays with the father at times to be agreed and failing agreement as is ordered by the Court.

1. The mother’s application for costs of the children’s proceedings is adjourned for the mother to file and serve an affidavit upon which she relies to 30 January 2013 at 9.15 am before the Honourable Justice Dawe.

1. The appointment of the Independent Children’s Lawyer is discharged one [1] month from today.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Keightley & Keightley (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 4573 of 2008

Mr Keightley

Applicant

And

Ms Keightley

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an application in relation to final orders being made for the welfare of the youngest child of the parties, P (the child).  P was born in April 2000 and is therefore, aged 12.  There have been proceedings in relation to the children’s orders and financial matters before the Court for a number of years. 

2. I have a moment ago made my ruling in relation to continuing to hear the final orders application on an undefended basis. 

3. I have this afternoon received the affidavit of the mother filed on 27 September 2012 and the affidavit of the Family Consultant, following the orders that were made by Justice Burr, being the report of the Family Consultant and updated family report prepared on 21 February 2012.  I have heard submissions from counsel for the mother, the Independent Children’s Lawyer and the father’s remarks.

4. What the Court has to determine is what is in the best interests of the child, even though this is an undefended matter. I have taken into account the significant history of the matter. The Court is required to consider the provisions of section 61DA of the Family Law Act 1975 (Cth) (‘the Act’) which creates about a presumption that the parents should have equal shared parental responsibility. That equal shared parental responsibility is however, subject to being rebutted upon the Court being satisfied of certain criteria and in particular, the Court being satisfied that it would not be in the best interests of the child for the parties to have equal shared parental responsibility.

5. There is some significant persuasion in the matters put by the counsel for the mother that, because of the intractable conflict between the parties, it would not be in the child’s best interests for the parties to have equal shared parental responsibility.  Some weight should also be given to the submissions of the Independent Children’s Lawyer that equal shared parental responsibility for the child continue based upon the significant time the child has in the past spent with his father. 

6. Taking into account the history of the matter and in particular, the child’s placement with the father over a period of time, I am not satisfied that the presumption is, in this case, rebutted.  I decline to make an order giving the mother sole parental responsibility for the child at this time.

7. That is on the basis that both parents will consider their obligations as parents to come to sensible agreements in relation to the long term arrangements for the child.  In particular, it would appear in the child’s best interests for him to join his elder brother at the B School next year which has already been foreshadowed by the mother in her affidavit. 

8. In relation to the other matters, the Court is required to make a decision which is based upon the welfare of the child being the paramount consideration, taking into account the matters set out in section 60CC of the Act. Included in those as primary considerations are the need to protect the child from harm and for the Court to consider the benefit of an ongoing meaningful relationship between the child and each of the child’s parents.

9. Significant other matters to be considered in this particular matter are the wishes of the child, the attitude to the responsibilities of parenthood and to the child of each of the children’s parents and the impact of any changes which might occur. 

10. As indicated in submissions, C (who was born in May 1997 and is therefore, aged 15) has been living with the mother for a considerable period of time.  The relationship between the siblings is a significant factor. 

11. Also significant in this matter is the report of the Family Consultant which I have taken into account, setting out the significant wishes of the child and highlighting the difficulties the child refers to in relation to the household of the father, his current partner and other half-siblings and siblings in that household.  The evaluation of the Family Consultant emphasises:

    …[P] presented as a child who held a seemingly informed view regarding his future living arrangements. He appeared to have come to this view in response to weighing up the costs and benefits of residing in two very different home environments…

12. I am now quoting from paragraph 10 of the Family Consultant’s report.  It continues:

    It was evident that [the child] has developed a coping style to manage the intractable conflict between his parents, characterised by blocking out his exposure to, and worry about, their personal issues.  Whilst this adaptive strategy appears to be a mostly effective one for [the child], the writer held some concern about [the child’s] tendency to deny and/or minimise the significance of his own emotional needs and responses.

13. The report then goes on to suggest that:

    [The child] may benefit from attending upon a therapeutic program...

14. The recommendations, after careful consideration by the qualified Family Consultant, is that:

    ·[The child] lives with the mother.

    ·[The child] spends time with the father after school on two occasions each week for the purpose of training attendance during soccer season; and on one occasion each week in the off-season, for a dinner visit.

    ·[The child] spends time with the father on alternate weekends from the conclusion of school Friday until the conclusion of school Monday.

    ·The father is at liberty to attend at (and/or participate in the coaching of) the child’s soccer game on the intervening weekend.

15. Considering all of the factors in section 60CC, the significant report of the Family Consultant and the matters raised by the mother in the affidavit filed on 27 September 2012, I consider it to be in the child’s best interests that he live with the mother and spend regular time with the father in accordance with the Family Consultant’s recommendations. I do not consider it is appropriate for a child of the child’s age in this sort of conflict environment to be given the responsibility to make the decision as to when he would spend time with the father. That puts too much of an emotional burden upon the child. It is more appropriate that the mother be required to ensure that the child be encouraged to spend time with the father, in accordance with the recommendations of the Family Consultant. Specific arrangements would be a much better arrangement for the child because then the child and both of his parents will know in advance, on a regular basis what the arrangements are to be.

16. On 8 October 2012 I directed the property settlement proceedings be listed before a Registrar for directions at a time to be advised, noting that the trustees in bankruptcy of the father have filed a notice of address for service.  I will draw to the Registrar’s attention that it has been sent to the Registrar for directions at a time to be advised.  Now that the trustee has filed an address for service they obviously have to participate in the property settlement proceedings.  An update in relation to the father’s financial circumstances would be relevant in relation to any costs.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 14 November 2012.

Associate: 

Date:  27 November 2012