Leisa and Tait

[2013] FamCA 232

FAMILY COURT OF AUSTRALIA

LEISA & TAIT [2013] FamCA 232

FAMILY LAW – CHILDREN – Interim Parenting – Where the mother made an application to vary the interim parenting arrangements – Consideration of the best interests of the child – Where it was determined that there be no significant change to the interim parenting arrangements which have been in place for some time – Where it was accepted that the mother spend some extended time with the child.

Family Law Act 1975 (Cth.) s 60CC

APPLICANT: Ms Leisa

RESPONDENT: Mr Tait

FILE NUMBER: SYC 7091 of 2010

DATE DELIVERED: 1 March 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 1 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kennedy

SOLICITOR FOR THE APPLICANT: Champion Legal

COUNSEL FOR THE RESPONDENT: Mr Batey

SOLICITOR FOR THE RESPONDENT: York Family Law

Orders

1. That the order 2 made by Principal Registrar Filippello on 6 October 2011 is discharged and in lieu thereof I order that J spend the following time with the mother:

(a)In week one commencing 3 March 2013 from 10am to 5pm to the following Tuesday.

(b)In week two commencing on 10 March 2013 and each alternate weekend thereafter from 3.00pm Sunday to 5.00pm Tuesday.

1. That the mother is at liberty to telephone the child on the father’s landline each Thursday at 5pm and the father will do all things necessary to facilitate the child receiving the mother’s phone call.

1. That for the purpose of change over the father will deliver the child to the mother’s residential address at the commencement of the mother’s time with the child and the mother will deliver the child to the father’s residential address at the conclusion of the her time with the child.

1. That the parties forthwith do all things necessary to contact Dr C and to take all steps necessary to undertake such therapy for the child as Dr C sees fit including attendance by either or both of the parties upon Dr C as she requires with or without the child.

1. That each party keep the other informed of all appointments with Dr C and with information provided to and from Dr C.

1. That the expert Dr A be requested to prepare an updated report taking into account such matters that she sees fit that have occurred since the date of her last report.

1. That the father in the first instance pays the costs of the preparation of that report with the characterisation that the costs of the report are to be dealt with at the final hearing.

1. That the matter is stood over for directions before me on 6 May 2013.

1. That in the event the expert accountancy report has not issued or in the event of non-compliance the parties have liberty to contact my associate to restore the proceedings to the list on 7 days notice.

NOTATION:

1. That the child is now attending pre-school four days per week on Monday, Tuesday, Thursday and Friday as agreed by both parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Leisa & Tait 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 SYDNEY

FILE NUMBER: SYC 7091 of 2010

Ms Leisa

Applicant

And

Mr Tait

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons were delivered orally.

2. This matter was listed before me today because there was a dispute between the parties as to whether their child, J, (“the child”) should attend preschool on two days per week or four days per week.  The child is now attending preschool four days per week, in an arrangement with which both parties concur.  Notwithstanding that agreement, the fact that the child is now attending preschool four days a week has caused the parties, in particular, the mother, to seek varied parenting arrangements, as a consequence of him spending two extra days at preschool.

3. It is axiomatic that, when a child starts to attend preschool, there is less time available for him to be with his parents.  Recognising this, the father proposed that the time the child spend with his mother commence at 1.00 pm on Sundays, rather than 3.00 pm, and be extended to 5.00 pm on Tuesday, instead of 3.00 pm. 

4. By an amended minute handed up today, the mother seeks that, commencing this weekend, her time with the child commence at 10.00 am on Sunday and end at 6.00 pm on Tuesday, in week 1 and the following week be from 3.00 pm Sunday to 6.00 pm on Tuesday.  This is because the mother works every second Sunday until 3.00 pm.  She also seeks time with the child on the day that he does not go to preschool, which is Wednesday and she proposes that the child spend time with her from 10.00 am to 3.00 pm on Wednesdays. 

5. Dr A has prepared two reports in this matter, the most recent of which was received in August 2012.

6. In paragraph 59, speaking of the arrangements that are presently in place, Dr A said:

   On balance, I suggest that another change to [the child’s] parenting arrangements at this time is not in his interests, assuming that the father is able to care personally for [the child], and especially support [the child’s] transition out of his care, for example, to his mother and to preschool.  The father may need help from [Dr C] to learn to cope with [the child’s] anxiety in leaving his care.

7. Dr A also noted that the parents should consider participating in some joint sessions with Dr C, who is a therapist assisting the child. The present orders have been in place since 6 October 2011. They have thus provided some stability for the child, which Dr A obviously sees as desirable. I bear in mind that I am dealing with this application on an interim basis, and that my task is to act in what I regard as the interests of the child, having regard to the factors set out in section 60CC of the Family Law Act.

8. Ms Kennedy, appearing for the mother, rightly points out that the comments of Dr A in paragraph 59 of her report are subject to an assumption.  There is evidence in that report that a carer was delivering the child to school rather than his father.  Mr Batey informs me from the bar table that the father is in fact delivering and collecting the child from preschool personally.

9. That is the only material before me, at present, as opposed to when this report was written last year, that the child is being delivered to preschool by his father. 

10. I interpolate that the parties should understand, if they do not already understand, that their conduct in relation to the child will be under scrutiny by the other party between now and the hearing, that steps taken by the parties may then be used in support of a submission for an alteration, on a permanent basis, of the parenting arrangements.  The Court may be asked to find that those steps were not in the best interests of the child.

11. Dr A, in her first report, had noted a number of matters that she thought the mother should address and the mother has addressed those issues.  Reliance was placed by the mother on paragraphs 41 and 57 of that report. 

12. Paragraph 41 of Dr A’s report refers to the child continuing to have some problem adapting to the preschool and that he found it easier to separate from his mother than from the carer who was then bringing him.  The issue of carers was again addressed in paragraph 57 of that report.  Dr A was critical of the use of carers.  There is some force in that position and I would be concerned if it was still the case.

Conclusion

1. Notwithstanding those matters, which have weight, I am of the view that it is in the best interests of the child that there be no significant change to the interim parenting arrangements which have been in place for some time.  I accept Dr A’s view that another change to the child’s parenting arrangements at this time is not in his interests. 

2. This is an interim application. I would anticipate that there would be a final hearing on parenting issues later this year and I do not think it would be appropriate to make a change now, when there may be yet another change in the parenting arrangements, as a result of that final hearing.  I therefore am not persuaded that it is appropriate to make a significant change in the time that the child spends with his mother.

3. However, it is accepted by Mr Batey that some extended time with his mother is appropriate, having regard to the time that he now spends at preschool.  I will make an order that the child spends time with his mother starting this Sunday at 10.00 am until 5.00 pm the following Tuesday and the week after from 3.00 pm Sunday to 5.00 pm Tuesday, continuing week about thereafter.

4. An order was sought that the child spent time with his mother each Wednesday.  I think that is a too significant change to make on an interim basis and for the reasons I have already given, I will not make that order.  I also note, in relation to that, that the parties have agreed that they will take all steps necessary to ensure that the child spends such time having therapy from Dr C as Dr C thinks appropriate and that both parties attend joint or individual therapy with Dr C, as seems appropriate.

5. One of the reasons for seeking the time with the child on Wednesdays was to enable the mother to become more involved with the therapy with Dr C, and I think the order that has been agreed will do so. I appreciate that these are not the orders that the mother would wish to have and that she wishes to spend more time with her child.

6. My task, however, is to act in the child’s best interests and, at present, I see that best interest as being in a stable situation without significant changes. 

7. I note that the child is now attending preschool Monday, Tuesday, Thursday and Friday each week, and that arrangement is agreed to by both parties. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 1 March 2013.

Associate:

Date:  8 April 2013