KEYUSH & DHUPAM
[2011] FamCA 259
•1 April 2011
FAMILY COURT OF AUSTRALIA
| KEYUSH & DHUPAM | [2011] FamCA 259 |
| FAMILY LAW – CHILDREN – Interim determination as to time to be spent between the children and their father |
| Family Law Act 1975 (Cth): s 60B, s 60CA, s 60CC(2), s 60CC(3), s 60CC(4), s 60CC(4A), s 61DA(1), s 61DA(3), s 65DAA(3) |
| Goode & Goode (2006) FLC 93-286 Eddington & Eddington (No 2) (2007) FLC 93-349 MRR v GR [2010] HCA 4 Vance & Vance [2010] FamCAFC 250 |
| APPLICANT: | Ms Keyush |
| RESPONDENT: | Mr Dhupam |
| FILE NUMBER: | CAC | 1684 | of | 2007 |
| DATE DELIVERED: | 1 April 2011 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Faulks ACJ |
| HEARING DATE: | 1 April 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr P. Batey |
| SOLICITOR FOR THE APPLICANT: | Farrar Gesini & Dunn |
| COUNSEL FOR THE RESPONDENT: | Mr T. Tockar |
| SOLICITOR FOR THE RESPONDENT: | Dobinson Davey Clifford Simpson |
Orders
IT IS NOTED THAT:
The Queensland state school holiday periods for the year 2011 are as follows:
1.1Term 1 Break: Saturday 16 April to Tuesday 26 April;
1.2Term 2 Break: Saturday 25 June to Sunday 10 July;
1.3Term 3 Break: Saturday 17 September to Sunday 2 October; and
1.4School finishes on Friday 9 December.
UNTIL FURTHER ORDER, ON AN INTERIM BASIS, IT IS ORDERED THAT:
The children, S, born … February 2002, and G, born … July 2004 ("the children"), shall spend time with the father as follows:
2.1The children shall spend time with their father in Town 1, Queensland, for one period of 10 consecutive nights in Queensland Term 2, from after school on Friday 20 May 2011 until 10.00 am on Sunday 29 May 2011;
2.2The children shall spend time with their father in Melbourne (or any holiday destination in Australia chosen by him) during the Queensland Term 1 and Term 2 holidays as follows:
2.2.1From after school on Friday 15 April 2011 until 10.00 am on Sunday 24 April 2011;
2.2.2From after school on Friday 24 June 2011 until 3.00 pm on Sunday 3 July 2011.
2.3In the event of the trial not being finalised by the middle of Queensland Term 3, the children shall spend time with the Respondent Father in Queensland Town 1 for one period of 10 consecutive nights in Queensland Term 3, from after school on Friday 12 August 2011 to 10.00 am on Sunday 21 August 2011.
All handovers required to give effect to Orders 2.1 and 2.3 above will occur at the children's school, unless the children are not attending school in which case handover shall take place at Location 1 in Queensland Town 1.
All handovers required to give effect to Order 2.2 above will occur as follows:
4.1At the commencement of the father's time with the children, at Queensland Town 2 Airport; and
4.2At the conclusion of the father's time with the children, at Location 2 in Melbourne Suburb 1.
For the purposes of giving effect to Order 4.1 above, the father should give written notice to the mother at least 10 days in advance of his flight details.
When the father is spending time with the children in Queensland Town 1, he will ensure the children's attendance at school unless the children are ill, in which case the father will care for the children or child who is ill whilst in his care.
The mother will inform the father (in writing) about any matters relating to the children’s health which she considers may require attention whilst the children are in his care.
If the children are ill when they are in the father’s care during the time they spend with him in Queensland Town 1, then, except in the event of a medical emergency, the father will ensure that the children attend upon their ordinary medical practitioner(s) (…).
8.1The father will ensure that any treatment regime as prescribed by the children’s current medical practitioner(s) is adhered to whilst the children are in his care.
8.2[Order omitted for publication purposes].
In relation to the time that the father will spend with the children in Queensland Town 1, the mother will provide to the father details of all activities each of the children will undertake either at school or in relation to school during the relevant period and all requirements that are necessary for the children to participate in such activities.
The mother be restrained from making any other new extra-curricular arrangements (other than as a seasonal substitution for present activities undertaken by the children) for the children after school during the periods when the children are with the father without the written consent of the father.
When the father is spending time with the children in Queensland Town 1, the mother shall provide him with the children's school clothes, homework and other school items and the father shall ensure that he returns the children's belongings held by the children at the conclusion of those visits to the mother at the conclusion of the visits.
For the purposes of the children’s travel in the school holiday periods referred to above, the mother shall arrange and pay for all airline tickets for the children to travel from Queensland Town 2 to Melbourne (“the first leg”) and the father shall arrange and pay for all airline tickets for the children to travel from Melbourne to Queensland Town 2 (“the return leg”).
For the purposes of orders 2.1 and 2.13, the father shall arrange and pay for all airline tickets and his expenses himself during the periods within the school terms that he spends with the children in Queeensland Town 1.
The mother is restrained from changing the children's residence in Queensland Town 1.
The mother will use her best endeavours to ensure that the children telephone the father between the hours of 7.00 pm and 8.00 pm (Queensland time) on each Tuesday and Sunday evening, and the children are to have uninterrupted and unsupervised communication with the father during that period.
15.1In the event that this telephone contact cannot be facilitated at that time, the mother will ensure that the children telephone the father between the hours of 7.00 am and 8.00 am (Queensland time) on each Wednesday and Monday morning, and the children are to have uninterrupted and unsupervised communication with the father during that period.
The mother is at liberty to have communication with the children at all reasonable times when the children are spending time with the father.
IT IS FURTHER ORDERED THAT:
A transcript of the proceedings of 1 April 2011 be taken out and provided to the parties at the Court’s expense once it becomes available.
The matter is set down for a final hearing for four days on 22 August 2011. I request that the Family Consultant associated with these matters, Ms D, be advised of this listing and that the lawyers for the parties advise the Court in advance as to whether Ms D will be required for cross-examination.
The hearing fee for each of the days will be payable by the parties in equal proportions.
IT IS NOTED that publication of this judgment under the pseudonym Keyush & Dhupam is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: CAC 1684 of 2007
| Ms Keyush |
Applicant
And
| Mr Dhupam |
Respondent
Ex tempore
REASONS FOR JUDGMENT
Introduction
In this matter the proceedings before me moved from being the finalisation of the Less Adversarial Trial between the parties to an interim hearing pending a revised date for the final hearing. This arose because the negotiations, which I believe have been genuinely entered between the parties, have fallen through.
I do not propose to review all of the matters under the Family Law Act 1975 (Cth) (“the Act”) as factors I am to take into account under s 60CC (the primary and additional considerations in determining the best interests of the child). I am, however, conscious of Goode & Goode (2006) FLC 93-286 and the need, even in interim matters, to take account of relevant matters under the Act. I do so briefly in this way.
Relevant Law
Conscious that the provisions of Part VII of the Act are to be, to some extent, read in the shadow of s 60B, (which sets out the Objects and Principles of Part VII,) I take account of the fact that under s 60CA the best interests of the children are to be regarded by me as my paramount consideration.
Parental responsibility
In this matter, the presumption outlined in s 61DA(1) of the Act of equal shared parental responsibility is not a matter in issue before the Court at this point.
The parties had reached agreement previously and, by their physical actions in moving to where they did, placed themselves in a situation where, effectively, this is not a matter necessary to be considered by the Court. In any interim proceedings, in this matter in any event, it is not appropriate for any further determination to be made about that (see s 61DA(3) of the Act).
Time to be spent with the father
The rebuttal of the presumption does not require that I consider either equal share parenting time or substantial and significant time[1] with the children. Substantial and significant time is a factor which has exercised the parties before the Court in these interim proceedings.
[1] See generally, MRR v GR [2010] HCA 4.
The proposals contained in the minute of interim orders sought by the respondent father go some way towards dealing with the number of the matters that would fall properly under the heading of “substantial and significant time” in s 65DAA(3) of the Act.
Best interests of the child: primary and additional considerations
In determining what is in the best interests of the children I am to take account of the primary and secondary considerations set out in s 60CC.[2] I have already indicated during the course of my exchanges with counsel this day my view that many of the matters therein contained are in fact the subject of a common view between the parents. That is not to say that they have agreement about the interpretation of the actions of the other parent or, indeed, that they are agreed that all of the section should be applied in an equal way to each of the proposals put forward by each of the parents. Nevertheless, each of the parents has, in my opinion, expressed a commitment to the proposition that the children should have a meaningful relationship with the other parent,[3] and each of them has expressed an appreciation of the need to protect the children from physical or psychological harm.[4] There is a difference of opinion between the parents about the extent to which the other parent in each case has successfully protected the children from their physical and psychological harm. There is in this interim case no suggestion of abuse or neglect – or, indeed, of family violence.
[2] Family Law Act 1975 (Cth) s 60CC(1).
[3] Family Law Act 1975 (Cth) s 60CC(2)(a).
[4] Family Law Act 1975 (Cth) s 60CC(2)(b).
I do note (in passing), however, that the children’s mother has expressed her concern (to the point of anxiety) about any physical interchange between her and the father. It is unlikely that will change at least until the matter comes on for a final hearing.
The additional considerations to be taken into account by me include the views expressed by the children.[5] These views have been somewhat ambivalent as reported in previous family reports and reportable conferences. There is no new factor in relation to those views and they ought properly to be taken into account in these proceedings, this day. I note that the children’s reports to their mother do not coincide with the sworn evidence of the father about some aspects. I am not, in the course of interim proceedings, able to resolve that conflict. I do note the curious absence in the case of the father of the corroborative evidence that might have been available to negate some of those views. That is a matter I suppose for him in the long run but in the interim proceedings I am not obliged to resolve all of these issues and cannot satisfactorily resolve those matters on this day.
[5] Family Law Act 1975 (Cth) s 60CC(3)(a).
The children enjoy a good relationship[6] with each of their parents on the concession of the other parent, which is probably about as strong evidence as either child could obtain from anyone in these proceedings as they presently stand. I am satisfied that each of the parents wants to assume responsibility for the children in an appropriate way. They have different parenting styles. Those styles could be complementary if they were living together. Unfortunately, they do not necessarily complement either the other in their separation from each other.
[6] Family Law Act 1975 (Cth) s 60CC(3)(b).
The parents have chosen, for a variety of reasons and each of them separately, to arrange to live as far from each other as they reasonably could. The effect of that is that there is a genuine expense and difficulty[7] associated with the children spending time with either of their parents.
[7] Family Law Act 1975 (Cth) s 60CC(3)(d) & (e) refers.
Those are factors that I believe I should take in account.
These, then, are the principal matters that I think are appropriate to take into account on an interim basis. I accept that at a final hearing there would be a deeper consideration of the attitude of each of the parents, their responsibilities of parenthood.[8] I accept also there are contradictory views expressed by each of them about the way in which the other parent has accepted those responsibilities. I repeat, as I have said to counsel and to the parents on a number of occasions, that it is sad that those who have so much to give have found themselves incapable of giving. However, that is a matter I suppose that ultimately they will reconcile with their consciences and hopefully in a way that will enable the children to benefit in due course.
[8] Family Law Act 1975 (Cth) s 60CC(3)(i), (4) and (4A) refers.
The principal issues for my determination are whether the children should spend some time during term with their father in Queensland Town 1 where their mother agrees she will live until the final hearing and, if so, what length of time that will be and what are the arrangements to be for their handovers before and at the end of that period before the hearing.
In addition, it is agreed the children should spend holiday time with the other parents, and that holiday time in the first period coming up in April 2011 in a very short time is sought on behalf of the father to be of about 10 days. This is to take account of some vagaries of transport and, at least in part, I think to the fact he has to work for two days during that period.
While my enthusiasm for making an order in favour of the father brought about by, to some extent, his failure to make himself available for a period of time with the children would not ordinarily be strong, in this case, I accept that the coincidence of the school holidays with various arrangements about the father’s employment, no matter how poorly that may be explained in his affidavit and in his oral evidence, is such that it is reasonable that the period should be for about 10 days as he suggests.
So far as the other school holidays are concerned, the only other one that is likely to fall due before the final hearing between the parties is that commencing on 24 June 2011 and the period involved seems to me to be reasonable in the circumstances.
It is not reasonable that the children should not spend time with their mother during school holidays. It is important for them to have an opportunity to have “fun” time with her as well. I accept that there is a paucity of evidence on both sides about their opportunities to make themselves available to spend time with the children during the holidays (or at other times). However, I accept that, as a matter of principle, the children should be able to spend at least half of their holiday time with their mother – as well as spending time with their father.
One of the principal matters and issues is the question of who should bear the costs of the various arrangements. The arrangements whereby the father – and I accept that he does so in a spirit of generosity – goes to Queensland Town 1 to care for the children is are such that nevertheless the expenses for that time should be visited upon him. This is not in any way as in punishment but I think in recognition of the difficulties of making any other reasonable adjustment.
Nevertheless, in my opinion, the school holiday periods the children spend should, in circumstances where each of the parents has moved (and sequentially) and moved again, be shared equally between them. That would be best reflected in orders that provide that one parent pays for the transport of the children in one direction and the other parent pays for it in the other direction.
I hesitate to say it but I do not propose to make any specific orders about the production of photocopies of schedules and airfares in advance. I would hope that was unnecessary but, if it is necessary, in the final hearing I will make those orders – if parents cannot work them out for themselves.
There have been difficulties about communication. These have now been largely resolved – at least on the basis that the orders proposed by the father have not been opposed and a modification to them has been introduced in relation to the mother. I will make orders accordingly.
So far as the children’s belongings are concerned, the proposal on behalf of the mother is that the children should only be given such things as they can reasonably carry with them (snail-like) on their return to their mother. I think that probably is a sensible prescription to impose at this point in the proceedings, although, in my opinion, it would be better to have a different arrangement in final orders between the parents in due course.
The main issue really in dispute was the question of whether the children should spend time with their father in Queensland Town 1 during the school term.
The Legislature, as I commented on the occasion when I made a previous order on a temporary basis for similar arrangement, seemed to contemplate that it is important for the children to spend school time with the parent as opposed to only holiday time. This is the proper and reasonable basis that this would enable both parents to share in different aspects of the children’s lives (see s 65DAA(3) of the Act).
Section 65DAA(3) which sets out what constitutes “substantial and significant time”. This does not actually mean significant time in strictly quantifiable terms.
I note what the Full Court of the Family Court of Australia (Finn, Coleman & Collier JJ) said in Eddington & Eddington (No. 2) (2007) FLC 93-349 where their Honours said:
54.It is evident that, although orders for time to be spent with a parent fall literally within the provisions of section 65DAA(3)(a)(b) and (c), that does not mean that the orders thereby provide for substantial and significant time within the terms of the legislation. It is equally evident that orders made for time spent cannot satisfy the requirements of substantial and significant time unless they literally meet all of the requirements of those provisions. What constitutes substantial and significant time will vary from case to case. What is substantial and significant time in one factual context may well not be in another. Whatever their terms, orders for substantial and significant time will have in common that they literally comply with each of the requirements created by s 65DAA(3). There is no issue that the orders under consideration did so comply. (Emphasis added)
It simply means time that is significant, in the sense that it is possible for a parent to have the opportunity to engage in activities and events that happen during the time that the children spend with the parent that are themselves to be regarded as significant and substantial. It is not necessarily the time itself or the duration of the period per se which should make such time “substantial or significant”. I note that Boland J (exercising the appellate jurisdiction of the Court as a single judge pursuant to a direction given by the Chief Justice under s 94AAA(3) of the Act) in Vance & Vance [2010] FamCAFC 250 described substantial and significant time as inclusive of time which allows “…the parent to be involved in the child’s daily routine, and occasions and events that are of particular significance to the child, and occasions and events which are of special significance to the parent” (see paragraph 46). The authorities would appear to eschew applying a measurement to the time spent in order to determine whether such time constitutes “substantial and significant time” within the meaning of s 65DAA(3). All the Court needs to do in such matters, generally speaking, is make a proper assessment of the parties’ proposals in the context of the determination of what would be in the child’s best interests in conformity with the requirements of s 65DAA(3).
So in my opinion, in circumstances which, as Mr Tockar has said, are somewhat unusual where a father is prepared to travel, in this case quite considerable distances to spend time ensuring the children have time with him while they are at school, is an offer that should be accepted and it should be dealt with.
I have read carefully the evidence of the mother relating to her concerns arising from the period that has already occurred. I simply say about that at this stage I do not find her criticisms of the event or her version of what occurred afterwards as being convincing. I have no doubt that such contact is something she does not want. I have no doubt it will probably be, to some extent, disruptive of the children. But, then again, nothing could be more disruptive to these children than that their parents no longer live together.
I make orders accordingly.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Acting Chief Justice Faulks delivered on 1 April 2011.
Senior Legal Associate:
Date: 14 April 2011
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