Landis and Landis
[2012] FMCAfam 1452
•20 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LANDIS & LANDIS | [2012] FMCAfam 1452 |
| FAMILY LAW – Children – parenting orders – interim orders – cross applications to vary interim orders made on 23 November 2010 – where final hearing to take place on 6 March 2013 – whether changes to parenting arrangements in child’s best interests – need for stability in child’s life – where parental responsibility previously considered. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 61DB, 65DAA |
| Landis & Landis [2010] FMCAfam 1283 |
| Applicant: | MS LANDIS |
| Respondent: | MR LANDIS |
| File Number: | SYC 4810 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 20 December 2012 |
| Date of Last Submission: | 20 December 2012 |
| Delivered at: | Sydney |
| Delivered on: | 20 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Breeze |
| Solicitors for the Applicant: | David H. Cohen & Co |
| Counsel for the Respondent: | The Respondent appeared in person |
| Solicitors for the Respondent: | No solicitor |
| Counsel for the Independent Children’s Lawyer: | Mr Sperling |
| Solicitors for the Independent Children’s Lawyer: | Brian Samuel & Associates |
ORDERS
BY CONSENT
Order (10) made on 23 November 2010 restraining the parties from removing the child [X] from the Sydney Metropolitan area except between 1:00 pm on Friday 24 December and 10:00pm on Monday 27 December 2010 is discharged.
AND IT IS FURTHER ORDERED THAT
The Application by the Applicant Mother and the Application by the Respondent Father to vary the Orders made on 23 November 2010 are otherwise dismissed.
The Application for final parenting orders is adjourned to 6 March 2013 for Final Hearing at 10:00am and allocated three (3) days.
The Independent Children’s Lawyer is granted leave to issue ten (10) further subpoenas.
An interpreter in the Thai language is required for the assistance of the Applicant on 6, 7 and 8 March 2013 AND THE COURT NOTES that the Applicant requests that Ms T should be allocated as interpreter if possible.
IT IS NOTED that publication of this judgment under the pseudonym Landis & Landis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4810 of 2010
| MS LANDIS |
Applicant
And
| MR LANDIS |
Respondent
REASONS FOR JUDGMENT
Application
There are cross applications to vary the current interim Parenting Orders made by the Applicant and the Respondent. The applications in circumstances where the final hearing scheduled for three days this week could not proceed due to the unavailability of a Thai interpreter, needed for the Applicant Mother.
Accordingly, the hearing has had to be adjourned to a three day block of time commencing on Wednesday 6th March 2013. In the meantime, each of the Applicant and the Respondent seek to vary the Orders made on 23rd November 2010.
Orders Sought
The Applicant Mother’s counsel, Mr Breeze, has handed up a Minute of Proposed Interim Orders setting out ten Orders sought to be made on an interim basis until the final hearing:
1. All previous parenting orders are discharged.
2. The parents to the child [X] born [in] 2009 are to have joint parental responsibility.
3. The child [X] is to live with the Father.
4. The child is to spend time with the mother as follows:
a. In week 1, each Monday from 8.30am to Tuesday 5.30pm, and each Friday from 8.30 am until the following Monday at 5.30 pm, and
b. In week 2, each Friday from 8.30am to 5.3 pm.
5. The orders in 4 above are suspended for the period from 4 pm on 24 December 2012 until 4pm on 26 December 2012 where the child will spend time with the parties as follows:
a. with the mother from 4 pm on 24 December 2012 until 4 pm on 25 December 2012, and
b. with the father from 4pm on 25 December 2012 until 4pm on 26 December 2012.
6. For the purpose of orders 4 and 5 above, the party in which the child is residing or spending time with shall deliver the said child to the other party at [omitted] Police Station.
7. Neither party is to change their residential address or contact telephone numbers without first notifying each other and the ICL in writing.
8. The parties are restrained and injunctions hereby granted restraining each of them from abusing, harassing or interfering with each other and from denigrating each other in the presence of the child and from permitting any other person to do so.
9. The parties are restrained and injunctions hereby granted restraining each of them from attending the other’s place of employment or place of residence except by way of written consent from the other party.
10.Each party and their servants or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child from the Commonwealth of Australia AND IT IS REQUESTED that the AFP give effect to this order by placing the name of the said child [X] DOB [omitted] 2009 on the Airport Watch List otherwise known as the PACE Alert System in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the said Watch List until the Court orders its removal or suspension.
The Respondent Father also handed up a minute of Interim Orders that he seeks. They are:
1. That the child [X] born [in] 2009 is to return to the Respondent Father at 5.3 pm on Monday 24 December 2012 (Christmas Eve).
2. That the child is to spend time with the Applicant mother from 5.0 pm on Tuesday 25 December 2012 (Christmas Day) and return to the father at 5.3 pm on Boxing Day (26 December 2012).
3. That the mother is to supply a contact telephone number to the father for use in case of emergency.
4. That the order restraining the child from being taken out of the Sydney metropolitan area be revoked.
5. That all previous orders remain in place until further notice.
Evidence and Submissions
The Applicant’s counsel handed up the following documents:
a)A document entitled “Evidence proposed to be given by the Applicant Wife”; and
b)A letter from Mr A, the [occupation omitted] at the [omitted] where the Applicant works.
Mr Breeze submitted for the Applicant that an order should be made that the parties should have equal shared parental responsibility for the child. There was no proven finding of family violence, only allegations, so subsection 61DA(2) of the Family Law Act did not apply. Accordingly, the Court should follow the legislative pathway set out in s.61DA and apply the presumption that it is in the child’s best interests for her parents to have equal shared parental responsibility for her.
It would follow that the Court should then consider the matters in s.65DAA of the Act. It was not being submitted that the Court should make an order that the child should spend equal time with each parent pending the Court’s determination of the final parenting hearing, but the Court should consider the matters in subsection 65DAA(2) of the Act and find that the child should spend substantial and significant time with each parent.
It was submitted that, despite the Father’s assertion, there is no evidence that the mother suffers from a personality disorder.
The letter from Mr A was supportive of the Applicant’s claims and advised that flexible arrangements could be made in regard to the Applicant’s working hours. Depending on what orders were made,
Mr A said that he was certain that he would be able to offer continuing shift for the Applicant.
The Respondent Father opposes the interim orders sought by the Mother, as can be seen from Order 5 of his Minute of proposed interim orders. He seeks a variation of the time that the child spends with him over the Christmas period so as to correspond more readily with the time that his elder daughter [name omitted] will be spending with him at Christmas time.
Mr Landis told the Court that he was seeking his proposed Order 3, requiring the Mother to provide a contact telephone number for use in case of emergency because he had never been provided with a telephone number.
Counsel for the Independent Children’s Lawyer, Mr Sperling, opposed the various Orders sought, with the exception of the Respondent’s proposal to vacate the Order restricting the parties from taking the child out of the Sydney Metropolitan area. He submitted that that particular Order was now obsolete.
Mr Sperling submitted that the Independent Children’s Lawyer opposed the Mother’s application to increase her time with the child on an interim basis because such a proposal was not supported by the, admittedly untested, Family Report. In addition, a number of the orders sought by the Mother were already in place in the Interim Orders of 23rd November 2010.
The Independent Children’s Lawyer opposed the Father’s proposal to vary the arrangements for the child over the Christmas period as being unnecessarily disruptive to the child.
Area of Agreement
The parties agreed that Order 10 made on 23rd November 2010 should be discharged. That Order restrained the parties from removing the child [X] from the Sydney Metropolitan area except between 1:00pm on 24 December and 10:00pm on 7 December 2010.
That order is made by consent.
The Relevant Law
When a court is deciding whether to make a parenting order, section 60CA of the Family Law Act requires the court to regard the best interests of the child as the paramount consideration. The Court determines what is in a child’s best interests by considering the matters set out in subsections (2) and (3) of section 60CC of the Act.
Subsection 60CC(2) contains the primary considerations, going to the child having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm. Subsection 60CC(3) contains additional considerations, including such matters as the views of the child, where applicable, and the nature of the child’s relationship with each parent and other persons.
Section 61DA of the Act deals with the 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. The presumption does not apply if there are reasonable grounds to believe that a parent or other person has engaged in:
a)Abuse of the child or another child; or
b)Family violence.
The presumption may be rebutted by evidence that satisfies the court that it would not be in the child’s best interests for his or her parents to have equal shared parental responsibility (s.61DA(4)).
In interim proceedings, the presumption applies unless the Court considers that it would not be appropriate (s.61DA(3).
In any event, where there is an interim parenting order, section 61DB provides that the Court, when making a final parenting order, must disregard the allocation of parental responsibility made in the interim order.
All of those matters have been considered, where they are relevant.
I am not satisfied that it is in this child’s best interests to vary the parenting arrangements for the Christmas period at this stage. [X] is only three years old, having been born [in] 2009, and she has presumably settled into a routine. Similarly, the Mother’s proposal to increase her time with the child is premature, considering that a final hearing is only about ten weeks away. In any event, the Mother’s proposal to increase the amount of time she spends with the child is not supported by the Family Report, which is admittedly untested by cross-examination.
Proposed orders 3, 6, 7, 8, 9 and 10 in the Mother’s Minute of Proposed Interim Orders are largely already in existence, being largely covered by Orders 2, 6, 7, 8, 9 (in part) and 11 of the Orders made on 23rd November 2010. There does not seem to be any reason why those Orders should be vacated only to be remade.
The Mother’s proposed Order 9 seeks to restrain the parties from attending at each other’s place of residence as well as each other’s place of employment, whilst Order 9 of 23rd November 2010 merely provides:
The parties are restrained and injunctions hereby granted restraining each of them from attending the other’s place of employment except by way of written consent from the other party.
The existing Order does not restrict the parties from attending at each other’s place of residence, but the Applicant has not referred the Court to any evidence that shows that there has been any untoward incident involving either party acting inappropriately at the other person’s residence since the Orders were made on 23rd November 2010. Equally, there is no evidence to show that such an occurrence is likely at any time in the next ten weeks.
There does not appear to be any reason to vary the interim order.
The Mother now seeks an order for equal shared parental responsibility. The submission by the Mother’s counsel that appeared to go towards suggesting that the Court should have made an order to that effect originally seem to be more in the nature of an appeal, which is, of course, out of time.
When the matter was before the Court, the question of equal shared parental responsibility was considered in the decision (Landis & Landis[1]) at [68] and [69]:
[68]The presumption that it is in the best interests of the child for her parents to have equal shared parental responsibility does not apply in my view, because of the mutual allegations of family violence.
[69]The question of equal shared parental responsibility should more properly be left until the final hearing.
[1] [2010] FMCAfam 1283
In my view, nothing further has been shown to justify a change to this position on an interim basis. The decision was handed down on 23rd November 2010 and no appeal was lodged. The Applicant’s submission appears, with respect, to be no more than a belated challenge to the earlier decision.
In any event, s.61DB requires the Court, when making final orders, to disregard the allocation of parental responsibility in any interim proceeding. The question of whether or not the presumption that it is in the child’s best interest for her parents to have equal shared parental responsibility for her, or whether that presumption does not apply, is a matter that should properly be dealt with at the final hearing in March, where the parties’ evidence can be tested.
Apart from the order to be made by consent, the parties’ applications to vary the earlier interim Orders are dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 10 January 2012