LENOY & WATTS

Case •

[2011] FMCAfam 1464

•

20 December 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LENOY & WATTS [2011] FMCAfam 1464
FAMILY LAW – Children – parenting orders – interim orders – application to vary earlier parenting orders – best interests of the child – child a girl aged almost 4 years – time spent with father over Christmas – block time.
Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Mallahan & Mallahan [2010] FamCA 631
Watts & Lenoy [2010] FMCAfam 1460
Applicant: MR LENOY
Respondent: MS WATTS
File Number: SYC 3964 of 2009
Judgment of: Scarlett FM
Hearing date: 20 December 2011
Date of Last Submission: 20 December 2011
Delivered at: Sydney
Delivered on: 20 December 2011

REPRESENTATION

Counsel for the Applicant: Mr Maurice
Solicitors for the Applicant: Doolan Wagner & Callaghan
Counsel for the Respondent: Mr Wong
Solicitors for the Respondent: Barkus Doolan Kelly

ORDERS

UNTIL FURTHER ORDER

  1. Orders 3 and 14 made by the Family Court of Australia at Sydney on 24 September 2009 are suspended.

  2. The child [X] born [in] 2008 is to spend time with the Father as follows:

    (a)From 9:00am until 5:00pm on Christmas Eve 24 December 2011;

    (b)From 8:00am until 1:00pm on Christmas Day 25 December 2011;

    (c)From 8:00am until 5:00pm on Boxing Day 26 December 2011;

    (d)From 9:00am to 6:00pm on Saturday 14 January 2012;

    (e)From 9:00am to 6:00pm on Sunday 15 January 2012;

    (f)From 9:00am to 6:00pm on Monday 16 January 2012;

    (g)From 9:00am to 6:00pm on Friday 20 January 2012;

    (h)From 9:00am to 6:00pm on Saturday 21 January 2012 and each alternate Saturday thereafter;

    (i)From 9:00am to 6:00pm on Sunday 22 January 2012 and each alternate Sunday thereafter;

    (j)From 9:00am to 6:00pm on Tuesday 31 January 2012 and each Tuesday thereafter.

  3. For the purposes of the Father’s time with the child on Saturdays, Sundays and Tuesdays as provided by Orders 2(d) to 2(j) above, the Father is to provide an evening meal to the child.

  4. For the purposes of Order 2 above changeover will take place at each party’s residence unless otherwise agreed with the Father to collect the child [X] from the mother’s residence at the commencement of the periods of time that she spends with him and the Mother is to collect [X] from the Father’s residence at the conclusion of the periods of time that [X] spends with the Father.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 3964 of 2009

MR LENOY

Applicant

And

MS WATTS

Respondent

REASONS FOR JUDGMENT

Application

  1. This is an Application by the Father of a little girl called [X] to suspend earlier parenting orders made by the Family Court and to provide for him to spend time with her over the Christmas period and on various occasions during the January school holidays.

  2. The Mother seeks different orders, as she wishes to take the child on holiday to [B] with her, along with her new partner and his two children. This holiday, which has been already booked, will take the child out of Sydney from 27th December 2011 to 16th January 2012.

  3. Counsel for the parties have, very sensibly, agreed that the Application to be heard only five days short of Christmas Day should be restricted to those matters that cannot wait until the New Year.

Areas of Agreement

  1. The parties agree on a variety of matters:

    a)that [X] should continue to live with her mother and spend time with her father on a regular basis;

    b)that the child should spend time with her father on Christmas Eve and Christmas Day;

    c)that the child should spend time with the Father during the day for block periods of time in January 2012;

    d)that changeover will occur at each party’s residence with the Father to collect [X] from the Mother’s residence at the commencement of the time the child spends with him and the Mother to collect the child from the Father’s residence at the conclusion of the time the child spends with her father;

    e)that without admission the parties are restrained from allowing any third party to physically discipline the child; and

    f)the parties are restrained from denigrating the other or a member of the other’s family to [X] or in her presence or hearing.

Issues

  1. The issue from the Father’s point of view is that the Mother proposes to take the child away from 27th December 2011 to 16th January 2012. This will lead to two undesirable consequences:

    a)That there will be a lengthy period of time a day short of three weeks) when [X] will not be able too spend any time with her father; and

    b)[X] will not see her father on her birthday, which falls on [date omitted].

  2. The Father is currently only seeing [X] during daylight hours. However, the writer of the Single Expert Report, Ms B, a clinical psychologist, has recommended that to protect the child from attachment stress and to build up continuity of attachment with the Father, the child should have frequent day contact with the Father, leading up to short overnight contact after about six months.

  3. The Mother sees the issue of the holiday as very important, because:

    a)it has already been booked; and

    b)it has to be taken at that time as that is the only time that she and her partner, [name omitted], are able to take a holiday away with their children during the school holidays.

  4. The Mother also raises a concern about the times that the Father proposes for [X] to be picked up and delivered on Christmas Eve and Christmas Day, due to the fact that she now lives in the Eastern suburbs and the Father currently resides in [omitted], on Sydney’s North Shore, and travelling time between the parties’ residences takes about an hour. This is only a temporary problem, as the Father will be moving to [omitted] permanently on 28th December 2011.

Background

  1. The parties commenced their relationship in about December 2006. They separated in July or September 2007.

  2. The child [X] was born [in] 2008. She has lived with the Mother since then.

  3. There have been periods of time when the child did not spend any time with [X].

  4. The parties entered into consent orders in the Family Court on 24th September 2009 providing for the Father to spend time with the child.

  5. However, the parties have had certain disagreements about the time the child spends with the Father.

  6. There were proceedings between the parties in December 2010 concerning the Mother’s proposal to take the child to Bali in Indonesia on a holiday. The Father opposed the mother’s application.

  7. On 10th December 2010 I made orders permitting the Mother to take the child out of Australia to Bali (Watts & Lenoy[1]).

    [1] [2010] FMCAfam 1460

  8. On 4th May 2011 the parties consented to orders that Ms B should be appointed a single expert for the purpose of preparing a report to be used in these proceedings. The Report was released to the parties on 17th October 2011.

  9. The current interim Application by the Father was filed on 2nd December 2011 and heard in 20th December 2011.

Orders Sought

  1. The Orders that the father seeks (and are not agreed to) are contained in his Application in a Case filed on 2nd December 2011. As mentioned earlier, they are restricted to the following (summarised):

    a)that orders 8, 11 and 14 made in the Family Court on 24th September 2009 be suspended until further order;

    b)that the Father spends time with the child:

    i)from 9:00am to 6:00pm on Christmas Eve;

    ii)from 8:00 am to 2:00pm on Christmas Day;

    iii)from 9:00am on New Year’s Eve until the conclusion of the 9:00pm fireworks;

    iv)from 12 noon until 6:00pm on [date omitted] 2012, the child’s birthday; and

    v)for a block period of four days from 9:00am to 6:00pm each day in January 2012.

  2. The orders sought by the Mother are contained in her Minute of Orders handed up on 20th December 2011. The orders are:

    a)that the Father spends time with the child over the Christmas/January period as follows:

    i)from 9:00am to 3:00pm on Christmas Eve;

    ii)from 8:00am to 12 noon on Christmas Day;

    iii)from 9:00am to 4:00pm on Boxing Day; and

    iv)from 9:00am to 6:00pm on 14th, 15th, 19th, 20th, 21st, and 22nd January 2012 and alternate weekends thereafter; and

    v)each Tuesday from 9:00am to 6:00pm.

    b)that the Father’s time with the children is to be suspended from 27th December 2011 to 16th January 2012.

Evidence

  1. The Father relied on his affidavit of 1st December 2011. He also relied on various paragraphs of the Single Expert Report.

  2. The Mother relied on her affidavit of 13th December 2011.

  3. I have read the above affidavits and the Report.

Submissions

  1. Counsel for the Father submitted that the Father wanted to spend time with the child on her birthday. He wishes to build up his time with the child in line with the recommendations in the Single Expert Report, which is daytime for the next 6 months building up to overnight time thereafter.

  2. The Father suggest that during January 2012 the child should spend a block period with him from 14th to 18th January from 9:00am to 6:00pm. He would provide dinner for the child.

  3. Counsel for the Mother told the Court that the Mother was concerned that the block period suggested by the Father was a bit long at this stage and may be difficult for the child to cope with. The Mother wants to take the holiday with the child in December and January. If she were to do so, the Father would only miss out on two days with [X], on 7th and 8th January. These days could easily be made up.

The Relevant Law

  1. When a Court is deciding whether to make a particular parenting order in relation to a child:

    a)it must regard the best interests of the child as the paramount consideration (Family Law Act 1975, s.60CA);

    b)it determines what is in a child’s best interests by considering the matters set out in subsections 60CC(2) and 60CC(3); and

    c)it must apply a 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 unless the presumption is inapplicable or rebutted (s.61DA; see also Goode & Goode[2]).

    [2] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

  2. When a Court makes a parenting order that provides that a child’s parents are to have equal shared parental responsibility, the Court must consider whether the child spending equal time with each parent is:

    a)in the best interests of the child; and

    b)reasonably practicable (s.65DAA(1)).

  3. If the Court does not make an order for the child to spend equal time with each parent, the Court must consider whether the child spending substantial and significant time with each parent is:

    a)in the best interests of the child; and

    b)reasonably practicable (s.65DAA(2)).

  4. The Court has an obligation to consider the exercise of the power to make each order in the prescribed manner when the precondition for an order for equal shared parental responsibility has been met, even if neither party seeks an order for either equal time or substantial and significant time (see Mallahan & Mallahan[3] at [38]-[39]).

    [3] [2010] FamCA 631

  5. I have considered all of the above matters as they apply to this case.

Conclusions

  1. The parties consented to an order that they should have equal shared parental responsibility for [X] in the Family Court on 24th September 2009. That order has not been varied and there has been no application to vary or discharge that order. It is inappropriate to revisit that situation at this stage.

  2. This is not a case where equal time with each parent would be in the child’s best interests. The parties have significant differences over the parenting of their child, as witness the fact that there have been two separate applications before the Court since December 2010. Ms B in her Report has described [X] as “a very young child who has for the entirety of her life been exposed to inter-parental hostility”.[4]

    [4] Single Expert Report page 30 paragraph [137]

  3. The recommendations in Ms B’s report do not support an order that the child spend substantial and significant time with the father:

    139In order for [X] to be protected from attachment stress and to build up continuity of attachment with her father, it is suggested that a parenting arrangement that allowed [X] to have frequent day contact with her father each week would be most developmentally appropriate. The onus would then be on the father to ensure that this contact remained continuous, predictable and reliable for [X].

    140.Following this graduated build up of contact, after a period of approximately 6 months, [X] is likely to be able to cope with short overnight contact, provided that she be protected from inter-parental hostility at changeover.[5]

    [5] Ibid at page 31 [139]-[140]

  4. I am satisfied that an order for substantial and significant time with the Father, as defined by subsection 65DAA(3) of the Act, would not be in the child’s best interests at this stage.

  5. It is in [X]’s interests to have a meaningful relationship with both of her parents. This is not a matter where there is a risk of physical or psychological harm from abuse, neglect or family violence.

  6. [X] is too young, at just under four years of age, for any weight to be given to her views. She has been observed to have a close and secure relationship with her mother and a loving and warm relationship with her father. Ms B has described the Mother as appearing to understand the responsibilities of parenthood and the need for consistent, continuous and reliable parenting relationships.[6] The Father has been described as having a somewhat more limited understanding of the developmental needs of young children.[7] 

    [6] Single Expert Report page 24 paragraph [118]

    [7] Ibid at 25 [120]

  7. Ms B expressed the opinion that the parents’ capacity to provide for [X]’s physical and intellectual needs. However, she suggested that the parents would be able to provide for [X]’s emotional needs if they were to become more cognisant of the impact of their conflict on her psychological wellbeing.

    [X] does need to have a positive relationship with her father and she also needs to be protected from attachment stress and separation anxiety.[8]

    [8] Ibid at 26 [124]

  8. In my view, it would be beneficial for [X] to spend a reasonable amount of time with each parent over the Christmas period. The Mother has suggested that the child can spend time with the Father on Christmas Eve, Christmas Day and Boxing Day. The Father had not asked for Boxing Day, but it would appear to me to be beneficial for the child to spend some time with him on that day as well, if she is to go away with her mother to [B] from late December until


    mid-January.

  9. There does not appear to be any compelling reason why the child should not have a holiday away with her mother and her mother’s partner and his two children. There does need to be consideration given to Ms B’s recommendations that [X] should spend frequent time with her father during the day, so the extra day on Boxing Day will help bridge the gap until the child can spend time with her father again.

  10. The Father will be moving house on 28th December, so he will have his time occupied for a few days after that. I am not of the view that there is any particular need for this child to see her father on her birthday every year.

  11. Until the Father moves house, he will be living about an hour’s driving distance from the Mother’s residence, which is a factor for consideration in relation to the Christmas Eve, Christmas Day and Boxing Day arrangements. I propose to make orders that will take the travelling time into account, at least to some extent, by providing that [X] will spend a little less time with her father than he seeks for those three days, and a little more time with him than the Mother proposes. Consequently, I will order that [X]’s time with her father will be from 9:00am to 5:00pm on Christmas Eve, 8:00am to 1:00pm on Christmas Day and 8:00am to 5:00pm on Boxing Day.

  12. The child will go on holiday with her mother in December and January. Once she returns, she will then spend two blocks of three days with her father during the day, from 9:00am to 6:00pm each day. The two blocks will be separated by a block of three days with her mother. The purpose of this arrangement is not to make the time with the Father too long at this stage but to put some routine into this little girl’s life. The days with her father will be 14th to 16th January, being Saturday to Monday, and then 20th to 22nd January, Friday to Sunday.

  13. Once those blocks of three days have concluded, the child will then spend alternate weekends with her father during the day, from 9:00am to 6:00pm. The Father will provide dinner for his daughter on those days. It will be in [X]’s best interests to have dinner with her father on a regular basis, as sharing a meal together is a well-known way for people to develop their relationship. It is also relevant that 9:00am to 6:00pm is a reasonably long day for a four year old child, and she will be fairly tired by the time she returns to her mother. It will be better for her to have dinner before she has to go home.

  14. The child will also commence spending each Tuesday with her father, again from 9:00am to 6:00pm. Again, the Father will provide dinner for his daughter on those days.

  15. The Application can be mentioned again before the Court on Monday 27th February 2012.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Date:  9 January 2012


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Goode & Goode [2006] FamCA 1346
Mallahan & Mallahan [2010] FamCA 631