Kindricks and Kindricks
[2009] FMCAfam 1224
•20 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KINDRICKS & KINDRICKS | [2009] FMCAfam 1224 |
| FAMILY LAW – Interim parenting order – children to spend time with father. |
| Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC(2), 60CC(3)(b), 60CC(3)(c), 60CC(3)(d), 60CC(3)(j) & 64B |
| Applicant: | MS KINDRICKS |
| Respondent: | MR KINDRICKS |
| File Number: | ADC 2704 of 2009 |
| Judgment of: | Simpson FM |
| Hearing date: | 16 November 2009 |
| Date of Last Submission: | 16 November 2009 |
| Delivered at: | Adelaide |
| Delivered on: | 20 November 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Richards |
| Solicitors for the Applicant: | Barnes Brinsley Shaw Lawyers |
| Counsel for the Respondent: | Ms Dickson |
| Solicitors for the Respondent: | Nicolas & Co |
ORDERS
Until further order the said children spend time with the father:
(a)From 12.00 noon until 7.00 pm on 28 and 29 November 2009 and 5 and 6 December 2009;
(b)From 5.00 pm on 12 December 2009 until 12.00 noon on 13 December 2009;
(c)From 5.00 pm on 19 December 2009 until 5.00 pm on 20 December 2009 and each weekend thereafter for the same times;
(d)From 4.00 pm until 7.00 pm on Fridays subject to order (e) hereof;
(e)From 11.00 am until 3.00 pm on 25 December 2009 and otherwise with the mother on that day; and
(f)From 9.30 am until 6.30 pm on 30 December 2009 on condition that the father does not take time on 2 January 2010 pursuant to order (d) hereof.
The children’s overnight time with the father pursuant to these orders is conditional on:
(a)The father ensuring that the paternal grandparents absent themselves from their home so as to ensure that there is not overcrowding; and
(b)The father ensuring that the child [Y] is provided with a suitable cot to sleep in.
The father shall take all reasonable steps to ensure that whilst the said children are in his care at the paternal grandparent’s home that the said children will:
(a)Be safe from harm or harming themselves; and
(b)Not subjected to unhygienic conditions.
Until further order all handovers shall take place outside the Coles Supermarket at [K].
The interim relief sought:
(a)In the father’s Application in a Case filed on 11 November 2009; and
(b)Paragraphs 1 to 8 of the interim relief sought in the mother’s Response to an Application in a Case filed on 13 November 2009,
are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Kindricks & Kindricks is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 2704 of 2009
| MS KINDRICKS |
Applicant
And
| MR KINDRICKS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for parenting orders brought by the father of two children: [X] born [in] 2004 and [Y] born [in] 2007. The proceedings were commenced on 9 July 2009 and include claims for orders in relation to children’s issues and property.
Brief background facts
The parties married in 1996 and separated on 15 January 2009. Thereafter the parties continued living under the same roof until
4 November 2009 when the father left the former matrimonial home. The children remained with the mother.
The circumstances that resulted in the father leaving the former matrimonial home also resulted in the father being charged with aggravated assault of the mother. The father intends pleading not guilty to the charge.
Orders sought
On 11 November 2009 the father filed an Application in a Case supported by an affidavit in which he sought orders that the children spend time with him. The interim orders sought were as follows:
“1. The said children be permitted to spend time with the father as follows:
a) from 9.30 am to 6.30 pm on a weekday to be determined by this Honourable Court save that on 30 December 2009 the children spend time with the father being the occasion of his birthday from 9.30 am to 6.30 pm;
b) on Saturdays from 5.00 pm to 5.00 pm the following day.”
The mother filed her Response to an Application in a Case on 13 November 2009 which was supported by her affidavit the mother seeks the following orders:
“3. That until further order in the week of the hearing listed on Monday 16 November 2009, the said children do spend time with the father as follows:
3.1 Tuesday 17 November 2009 from 4.00 pm until 7.00 pm; and
3.2 Friday 20 November 2009 from 4.00 pm until 7.00 pm.
4. That until further order and until the husband has obtained suitable accommodation in the week commencing on Monday 23 November 2009 as follows:
4.1 Commencing on Saturday 28 November 2009 from 12.00 noon until 7.00 pm and each alternate Saturday thereafter;
4.2 Commencing on Sunday 29 November 2009 from 12.00 noon until 7.00 pm and each alternate Sunday thereafter;
4.3 Commencing on 1 December 2009 from 4.00 pm until 7.00 pm and each alternate Tuesday thereafter, excluding Tuesday 29 September 2009 (sic);
4.4 For the husband’s birthday on [date omitted] 2009 from 4.00 pm until 7.00 pm;
4.5 For Christmas Day on Friday 25 December 2009 from 10.00 am until 1.00 pm; and
4.6 Such other times as agreed between the parties.
5. That Until further order once and at such time the father has obtained suitable accommodation the said children do spend time with the father as follows:
5.1 From Friday 4.00 pm until Sunday 7.00 pm after dinner each alternate weekend; and
5.2 Such other times as agreed between the parties.
6. …
7. That communications between the parties in relation to the said children is to occur via phone sms only unless otherwise agreed by the parties in writing.”
Further background facts
The last time that the father has seen the children was 4 November 2009. He is presently living with his parents. He shares his parent’s house with his brother.
The mother makes complaints about the suitability of the paternal grandparent’s home as a place for the children to spend time with the father particularly on an overnight basis. The mother considers the paternal grandparent’s home to be unsuitable as it is too small for four adults and two children. In addition the mother complains that the home is not kept in a clean state nor is it properly maintained such that it would be dangerous for the children. The mother suggests that there are trip hazards created by power cords across the floor. She says that there is a weapons safe in one of the bedrooms in which guns and ammunition are stored. She says that there is excessive mould in the bathroom and only one toilet. She is concerned that the sheets on the children’s beds would not be changed. She is also concerned that there is no appropriate cot for the younger child [Y].
It is on this basis that the mother seeks Order 4 as detailed above in paragraph 5 namely that the father’s time as detailed therein only commence after the father has obtained other suitable accommodation. The difficulty that the father faces is that until he can be sure of his financial position and future commitments he is reluctant to commit himself to rental accommodation. He intends for the time being to remain living at the paternal grandparent’s home.
The mother is also concerned about the affect that there may be on the children (particularly the younger child) if they were to have overnight time with the father. The mother’s position is that there should be a regime put in place for gradually increased time for the children to spend with the father with overnight time being allowed at some suitable later time but then only if the father has suitable new accommodation.
There seems to me to be conflict between the order that the mother seeks in paragraph 5 of her Response which provides for two consecutive overnights per week as soon as the father has obtained other suitable accommodation. On the basis of this proposal by the mother, were the father to have obtained suitable accommodation prior to the hearing before me it would appear that the mother would have suggested that the father should immediately have had time with the children from 4.00 pm Friday to 7.00 pm Sunday. I do not believe that this is a position that the mother wanted to achieve.
What is in the children’s best interest?
Parenting orders are defined in s.64B of the Family Law Act 1975 (Cth) (“the Act”). The principles governing the Court’s determination of parenting issues are set out in Part VII of the Act. I note the objects of this part and the principles underlying them contained in s.60B. In deciding whether to make particular parenting orders s.60CA requires that I must have regard to the best interests of the children as my paramount consideration. In determining what is in the children’s best interest I start by considering the matters set out in s.60CC(2) (that is the primary considerations) and the matters in s.60CC(3) (the additional considerations).
The primary considerations are firstly the benefit to each of the children of having a meaningful relationship with both parents and secondly the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. In this case the mother accepts that the father has a good relationship with each of the children. Whilst the mother has said that the father assaulted her she does not suggest that that this is a reason why the father’s time should be limited in any way. I take into account the mother’s allegations of violence on behalf of the father. I cannot in interim proceedings such as these of course make any findings about the circumstances that gave rise to the father being charged.
There are numerous additional considerations that I take into account as is required by sub-s.60CC(3) of the Act. I propose to only address some of these in these reasons.
Sub-section 60CC(3)(b) requires that I take into account the nature of the relationship of each of the children with each of the parents. It is fair to say that the mother has been the primary carer of these two children although the father says that he has had a major role in caring for each of them. Whilst the mother disputes that the father had a major role, I accept that each parent has a good and meaningful relationship with each of the children.
The next factor, sub-s.60CC(3)(c), requires that I take into account the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent. I do not see any evidence that can reasonably lead to the conclusion that either parent does not show the willingness and ability referred to in this sub-section.
Sub-section 60CC(3)(d) requires me to consider the likely effect of any change in the child’s circumstances including any change that might result in separation from a parent. The mother submits that both children, but particularly the younger child, will be adversely affected by being separated from her for any significant period of time. It is on that basis that the mother suggests that, particularly for the younger child, time with the father should be for only a few hours and that there should be a regime in place working towards overnight time if appropriate. I take into account the mother’s evidence on the topic and the submissions that have been put by her Counsel.
Sub-section 60CC(3)(j) requires that I consider any family violence involving the child or a member of the child’s family. I have previously mentioned the mother’s evidence of violent behaviour on the part of the father. I take into account all of the mother’s evidence in this regard in deciding what the appropriate orders are.
Conclusions
There is some merit in the submission put on behalf of the mother that a regime of gradually increased time should be put in place before overnight time is allowed. However I believe that the regime that the mother proposes would not be in the children’s best interest as I believe that children of these ages would adapt relatively quickly to being away from their mother and with the father for significant periods of time. I propose to make orders that provide for a regime of gradually increased time that results in the children having overnight and significant time at an earlier stage than would the mother’s proposal.
I consider it in the best interests of both children that any time that they have with the father be at the same time. There will of course be a strong bond between the two children and it will be to the advantage of each that the other is present during the time that they spend with the father.
I do not believe that the father’s time should be limited as a result of the difficulty that the father has in immediately finding suitable rental accommodation that would accommodate him and the two children. I propose to deal with the mother’s concerns about safety and hygiene factors in relation to the paternal grandparent’s home (without, I stress, making any findings of fact about the truth or otherwise of the mother’s expressed concerns) by placing an obligation on the father aimed to ensure that the father properly supervises the children whilst at the paternal grandparent’s home as he should, of course, be doing at all times that the children are in his care.
It has been agreed that any overnight time that the children have with the father will be on conditions that, firstly, the father ensures that the paternal grandparents absent themselves from their home so as to ensure that there is not overcrowding in the home whilst the children are overnighting and, second, that the father ensure that the child [Y] is provided with a suitable cot to sleep in. I propose to make an order in those terms.
The parties have reached agreement about handovers. They are to take place outside the Coles Supermarket at [K].
As contact with the mother is prohibited pursuant to the father’s bail conditions I do not propose to make the order sought by the mother that communication between the parties in relation to the children occur via text messages.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Simpson FM
Associate: J. Semler
Date: 20 November 2009
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