Landon and Landon

[2009] FamCA 13

FAMILY COURT OF AUSTRALIA

LANDON & LANDON [2009] FamCA 13

FAMILY LAW – CHILDREN – With whom a child spends time – The periods of time to be spent by the children with the father – Best interests of the child
FAMILY LAW – COSTS – relevant factors in the exercise of discretion to make an order for costs

Family Law Act 1975 (Cth) ss 60CA, 60CC, 117

U v U (2002) FLC 93-112

APPLICANT: Mr Landon

RESPONDENT: Ms Landon

FILE NUMBER: SYC 7773 of 2007

DATE DELIVERED: 9 January 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Honourable Justice Rose

HEARING DATE: 9 January 2009

REPRESENTATION

APPLICANT IN PERSON: Mr Landon

COUNSEL FOR THE RESPONDENT: I Serisier

SOLICITOR FOR THE RESPONDENT: McBride Harle and Martin

Orders

1. That the alternative weekend periods that the 2 children of the parties shall spend with the father in accordance with order 5 made 18 December 2008 shall commence on the first Friday in the first week of each school term AND that the parties shall note the obligations created by this Order and the parenting Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Fact Sheet..

2. That the father have a further period of time with the two children in school term commencing at 3pm on Thursday and continuing until the commencement of school the following day, taking place in alternate weeks commencing on the first Thursday following the fourth alternate weekend period of time that the 2 children spend with the father in accordance with the orders made 18 December 2008 and today.

3. That in the event of the father being unable to exercise any period of time with the two children in accordance with these orders or the mother being unable to make the two children available to the father for that purpose, the party who is unable to comply with the orders shall as soon as possible forward a text message to the other party stating that fact and giving a brief reason or reasons for the situation that has then developed in relation to those matters without any threats being made by one party or the other.

4. That no contravention application be filed by either party without leave having first been given by either a Judge or Registrar of the Court.

5. That the father pay the mother’s costs of 26 November 2008 in the sum of $898.90 plus GST, such payment to be made to the mother’s solicitors on or before 5pm 20 March 2009.

6. That the father has leave to file and serve sealed copies of his further amended Response already filed on 5 January 2009 and his affidavit sworn on 30 December 2008.

7. That leave is granted for the father to have filed Notice of Child Abuse 5 January 2009 and to serve it forthwith.

8. That leave is granted to the mother to file and serve her affidavit sworn 23 December 2008.

9. That the parenting and property settlement proceedings be included in Justice Rose’s Call-over on 23 February 2009 at 2:15pm.

Notation

A.That in the event of a visiting Judge being available to hear  these proceedings on a date prospectively sooner than available dates that Justice Rose might have, the parties and their solicitors will be so informed by letter by Justice Rose’s Associate, inviting their response to consent to the proceedings being listed before the different Judge if appropriate.

IT IS NOTED that publication of this judgment under the pseudonym Landon & Landon is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7773 of 2007

MR LANDON

Applicant

And

MS LANDON

Respondent

REASONS FOR JUDGMENT

Introduction

1. By the father’s Amended Response filed 2 April 2008 he sought a number of parenting orders.

2. One of the orders so sought is set out in paragraph 11 B in the following terms: that the children exercise contact with him “From 6.00 pm each and every Wednesday until 9.00 am on Thursday inclusive.”

3. It was made clear by the Father in response to questions that I raised with him that the orders so sought were during each school term and implicitly to commence in the first term of 2009.

4. The mother opposes the orders so sought.  The mother seeks an order that the father's application be dismissed.

5. The application for a mid-week period of time made by the father was stood over by me on 18 December 2008, to be heard and determined today if possible.

6. On 18 December 2008, the mother’s application for an order for costs against the father in relation to the court event on 26 November 2008 was also stood over for hearing and determination today.

7. The father opposes the mother’s application for costs.

8. The mother has been legally represented at all court events including today.  The father is unrepresented.

9. On 18 December 2008, I directed that oral evidence may be given by each of the parties today rather than incurring the expense of affidavits required to be prepared, sworn, filed and served.

10. The parties gave evidence today.  I permitted cross‑examination of each of them relevant to the issues for determination today.

11. Apart from their oral evidence a number of documents were tendered which included the party's respective Parenting Questionnaires, the Single Expert’s Report of Dr P, psychiatrist dated 24 November 2008,  certain correspondence passing between the father and the mother's solicitor and a medical certificate dated 24 November 2008 with related e‑mail. All of which were received as Exhibits 1 to 5 inclusive.

12. I outlined the practice and procedure to the father and invited him to inform me of any matters about which he sought further information. The matter then proceeded in the conventional way.

Historical background

1. The brief background to this matter is as follows.

2. The parties commenced cohabitation on their marriage which took place in May 1999.

3. They separated on 13 May 2006.

4. I have assumed that the marriage is still subsisting, absent evidence or information to the contrary.

5. The father is 33 years of age and employed as a public servant.

6. The mother is 32 years of age and employed as a dental assistant.

7. The parties’ two children, the subject of the parenting proceedings, are J, seven years of age, having been born in March 2001 and H, almost five years of age, having been born in January 2004 (“the two children”).

8. The two children have been in the primary care of the mother continuously since the parties separated.

9. The father has had the children in his care principally in accordance with interim orders to which I will make subsequent reference.

Current proceedings

1. The relevant orders are as follows.

2. On 1 July 2008, Dr P was appointed the single expert and directed to prepare and furnish a single expert’s report.

3. On 13 October 2008, the first day of the hearing in accordance with the Less Adversarial Trial procedure took place following evidence given by each of the parties, a counselling session with the family consultant as well as interim parenting orders made by consent.

4. The latter Orders provided in substance for the children to spend time with the father from 4.00 pm to 7.00 pm each Tuesday and Thursday commencing on 14 October 2008, with the children to be collected outside M Police Station by the father and returned to the mother outside N Police Station.

5. On 26 November 2008 I made directions for the continued hearing of the pending parenting proceedings.

6. Directions were also made in relation to the pending property settlement proceedings which involved third parties.

7. There was no appearance by or for the father.

8. Information had been emailed or sent by other written communication by the father, or on his behalf, that he was unable to attend due to ill health.  No medical certificate was provided.

9. The father had not retained a lawyer to represent him on 26 November 2008.

10. The mother was ready to proceed.  The mother was legally represented.

11. I was satisfied that the father had been served with the mother’s then pending application for an order to alter the place for changeover of the children from her to the father.  I made the order as sought which had the effect that changeover was to take place outside the mother’s home at G.

12. On 18 December 2008 interim parenting orders were made by consent.

13. On that occasion the father appeared in person and unrepresented.

14. Amongst the consent orders was a requirement that the place of changeover from the care of the two children by the mother to the father was to take place at the entrance to R Swimming Pool.

15. Apart from orders which made provision for periods of time to be spent by the two children with the father on Christmas Day and on 27 December 2008, those orders also provided for the two children to spend alternate weekends with the father from 3.00 pm Friday to 9.00 am Monday implicitly during school term, that the father collect the two children from school and or the entrance to F Swimming Pool, respectively depending on the circumstances that then applied, school holiday periods were also provided for as well as what is described as “liberal” telephone contact.

16. Further directions were made in relation to the property settlement proceedings.

17. I stood over the matters to which I have earlier referred for determination today.

18. The parties subsequently received copies of the sealed engrossed orders.

Relevant legal principles pursuant to the Family Law Act 1975 as amended (“the act”)

1. Section 60CA of the Act continues what has been referred to for many years as the “paramountcy principle”.

2. That principle is that any parenting orders which may be made must be made on the paramount consideration of the best interests of the children, the subject of proceedings.

3. Implicit for the purpose of reaching that determination is the nature, extent and quality of the evidence that may be given by the parties, or on their behalf, or by any independent expert.

4. Amongst the objects of the Act following the 2006 amendments is that the right of the child to have the direct parental involvement in the child’s care, upbringing and development.

5. That object together with the other objects set out in the Act, as well as the principles that underpin those objects, are guided by one important exception, and that is: what is in the best interests of the child or children the subject of the proceedings.

The Evidence

1. Given the ages of the two children, especially the youngest child, the views of the two children before me are of limited import.  Those views together with other relevant matters are the subject of Exhibit 2.

2. Suffice it to say that it is the opinion of Dr P that the children have a familiar and relaxed relationship and attachment with the parties.  Implicit is that the children are likely to have the view of wanting to spend periods of time with the parties.

3. There is no issue that the two children should continue to live with the mother on a primary basis, subject to the father's foreshadowed application for determination on such days that are set aside to complete the final hearing, that they live with each of the parties in alternate weeks during school term. 

4. However, that is not a matter upon which I am required to make a determination today.  Today's issue in terms of parenting periods of time is restricted only to whether or not it is in the children’s best interests that they spend a period of time with the father mid-week, and if so, the terms and conditions that should apply to such an order. 

5. On the evidence before me there is little doubt that the children have spent periods of time in accordance with the orders to which I have referred.

6. The father has given evidence, not challenged by the mother’s evidence in any way, that the children have not only spent periods of time with him in accordance with the orders, but that their period of time with him was enjoyable and that there have not been any distressful events affecting both or either of the two children following their return to the care of the mother.  That has been particularly against circumstances where the alternate weekends were not only agreed upon, but also the Christmas periods to which I have referred.

7. Dr P’s report, being Exhibit 2, contains his recommendation that it is in the children's best interests, from the viewpoint of his discipline, that the parental relationship with the father be continued and implicitly strengthened by them spending periods of time with him on weekends, during the week and on school holidays.

8. The report does not contain a recommendation that reflects the terms of the order sought by the father.  Nonetheless, the substance of the recommendation currently unchallenged is that it is in the children’s best interests that they have the benefit of care which the father can provide during the periods of the week to which I have referred.

9. The difficulties in relation to arrangements for the care of the children have been accentuated as a result of the lack of verbal communication between the parties in relation to matters affecting the children, quite clearly a conflicted relationship between the parents, with each in the past making allegations of derogatory behaviour by the other.

10. In addition, it seems that it requires a court event for the parties to be able to concentrate upon the real issues affecting the children, rather than a continuation of the campaign which each of them may be waging against the other involving perhaps members of the mother’s extended family.

11. Unfortunately, both attitudes have been reflected in a number of ways.

12. The father considers that he is put at risk by having contact changeover take place in front of the mother's home. The reason being that she lives with her parents who allegedly are antagonistic towards him and a number of what he describes as malicious allegations have been made and continue to be made to him or about him.  He considers that that creates not only stress for him, but potentially also for the children, hence his past insistence that changeover take place at a police station. 

13. Because of his mindset about those matters, he failed to exercise the rights created by orders for the children to spend time with him, at least on two occasions towards the end of last year.  The further two occasions were missed he says because of ill health.

14. Unfortunately, the medical certificate which he tendered and which is Exhibit 5, does not support that contention.  Indeed, it merely states that due to him suffering what is described as “a medical condition”, he was unavailable “to attend work/school.” The relevant period of time given is 24 November 2008 to 29 November 2008.  That medical certificate is singularly unhelpful.

15. Shortly prior to the weekend period of time that the children spent with the father on 19 December 2008, the father sought by email dated 18 December 2008 that he be provided with children's clothing contained in overnight bags for the relevant period of time that they were to spend with him due to the possibility of changing weather conditions.  The written response from the mother’s solicitors, no doubt on instructions, states:

    “You did not seek any orders in relation to children's clothing and it is therefore your responsibility to provide for the children when they are in your care.”

16. It seems to me that that was also an unhelpful response which did not focus upon what is in the children’s best interests, but rather as a means of point-scoring because an order had not been sought.

17. It might have been considered, as a matter of commonsense and sensitivity to children’s needs, that antagonism between the parents could have been put aside and suitable clothing then provided.

18. Subsequently the mother, to her credit, did provide three bags of clothing.  She gave evidence about those matters.  I accept it and make findings accordingly.

19. The father gave evidence that the children have not only enjoyed their time with him, but that the youngest child due to commence in the kindergarten class at school this year was an engaging child who was confident, mature and makes friends easily.

20. Consequently, he submitted in accordance with his evidence that her adjustment to attending school for the first time should proceed smoothly, although he did recognise that perhaps she might be a little upset on the first day of school.

21. The mother for her part gave evidence about those matters.  The effect of her evidence was that she considers that it will take a while for the youngest child to settle in the school having regard to it being her first experience in attending school, having to adjust to being in a school environment with teachers and other features of a school including meeting and adjusting to new faces.  The mother relies on her experience with the eldest child when he started school when apparently he was upset for some time.

22. The father’s response to that evidence is that given that the children have been attending day care, that the youngest child has attended day care three days a week in preparation for attending school and given her personal qualities, she should make such a transition which will not be upsetting.  He also refers to what he understands as being the position for other children of Defence personnel who have moved from one place to another.

23. No doubt, examples can be given either way.  I am concerned, however, only with the evidence in relation to these two children, as opposed to what might be the situation with other children.

24. I have concluded that it is in the children’s best interest that there be a period of time spent with the father during the week, in addition to the periods which are also already the subject of orders by consent on 18 December 2008, namely alternate weekends to which I have made earlier reference.

25. I have also determined that the period of time with the father will take place on alternate weeks rather than every week and be overnight on a night as opposed to a Wednesday and that the commencement of such periods take place after the youngest child has attended school in the first term 2009 and following the fourth alternate weekend spent with the father.

26. The High Court in U v U[1] made it clear that I am not bound by the proposals of either party in terms of the orders that I might make in their best interests having regard to the evidence before me.

    1)U v U (2002) FLC. 93-112 at 89,077; 89,082; 89,089; 89,102

Conclusion

1. The reasons that I have reached the determinations to which I have referred are as follows.

2. Regardless of the circumstances that prevailed at and subsequent to the separation of the parties, the objective facts on the evidence before me are that the children have only spent relatively brief periods of time in the care of the father since the parties separated.  Those periods of time have been towards the end of 2008.

3. I have accepted the evidence of Dr P that it is in the children’s best interests that their relationship with the father be further strengthened by periods of time spent by him on weekends, during the week and on school holidays.

4. Whilst I have given weight to that recommendation, I am not required to blindly follow it without having regard to other evidence.

5. The youngest child will clearly have to make an adjustment to attending school for the first time.  I do not accept the father's evidence that a background of attending day care three days a week means that she can smoothly move to adjusting to a school environment, without there being some potential period which she will need to settle down to that new environment with all of its features, both obvious and subtle, notwithstanding his pride in her personal characteristics.

6. I have also taken into account the mother’s genuine anxiety and concern in relation to the adjustment by the youngest child to a new school, as well as to the continuing adjustment to spending further periods of time with the father.

7. It is well established that if a court makes a finding that a parent who is the primary carer has genuine anxiety and concern in relation to the care of the child, then so far as it is in the child’s best interests that matter should be accommodated as the primary carer’s parenting skills should not be adversely affected by such worry and concern.  Indeed, it is in a child’s best interests that such anxiety and concern be alleviated so far as it is reasonable to do so.

1. The commencement of the alternate weekends will take place on the first Friday following the commencement of each school term.  So much was agreed to in the course of the hearing today.

2. Whilst it is a somewhat arbitrary decision to choose four alternate weekends, as opposed to another period such as the mother’s suggestion of six months to allow for the child to settle down, it seems to me on the evidence before me that four alternate weekend periods with the father will give the children time to adjust on a regular basis to spending over-night periods with him.

3. At the same time, it allows sufficient time for the youngest child to adjust to attending school. Therefore, it will be to both children's best interests to move to the next stage after that period has passed to alternate overnight periods during the week with the father.

4. Consequently, the orders that I will make will reflect those approaches.

Costs

1. In relation to the matter of costs, the court event on 26 November 2008 did not result in all matters being able to be dealt with, particularly so far as property settlement was concerned, as well as aspects of the parenting issues, due to the father's non‑attendance at Court and the absence of a medical certificate to corroborate his statement that his health was such that he was not able to attend.

2. On 18 December 2008 I invited him to tender the medical certificate which he said he had. Following a search of the papers that he had with him at court, he was unable to produce it because he said that the certificate must have been left at his home.

3. As a result, I have provided a further indulgence to him and stood this matter over until today so that the medical certificate could be produced.  It is Exhibit 5 to which I have made earlier reference.  There is no need for me to reiterate my description of its contents, other than to emphasise that it does not support the father's contention that he was too ill to attend court, nor does it describe the health issues which he claims he was suffering from on that occasion.  The medical certificate is not one to which any weight can be attached having regard to its sparse and uninformative contents.

4. In my view, a circumstance has been established to enable a possible costs order to be made, the circumstance being that the father did not attend court on 26 November 2008 and there is no medical evidence to support his contentions of being too ill to attend court, notwithstanding that the father claimed that such medical evidence existed.

5. In terms of considering other relevant matters, they include the non-attendance by the father, or by anyone on his behalf, which might have enabled the proceedings to be dealt with more fully on 26 November 2008, the lack of sufficient notice to the mother’s solicitor which might have otherwise caused an adjournment to be sought by consent, particularly if a medical certificate which did have all the relevant information had been forwarded.

6. The mother was represented by solicitor and counsel.  Given the nature of the issues to be dealt with on 26 November 2008, I am not persuaded that costs other than on a party/party basis are necessarily appropriate for both solicitor and counsel.

7. Having regard to the failure of the father to appear on 26 November 2008, the lack of a corroborative medical certificate, given that Exhibit 5 is one to which no weight will be attached by me, that both parties are engaged in employment the father in full-time employment as a Commonwealth public servant and the real estate as part of the assets of the parties, I consider for those reasons that it is just that there be an order for costs.

8. I will make an order for costs not on a solicitor client basis for the reasons that I have given.  On the information provided to me by experienced counsel for the mother, the order that I will make will reflect a conference of $221.55 and a brief on hearing of $677.35 totalling $898.90 plus GST.

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: 

Date:  21 January 2009