Leon & Leon
[2021] FamCA 503
•13 July 2021
FAMILY COURT OF AUSTRALIA
Leon & Leon [2021] FamCA 503
File number(s): MLC 2058 of 2021 Judgment of: HARTNETT J Date of judgment: 13 July 2021 Catchwords: FAMILY LAW – CHILDREN – application for interim parenting orders – interim orders made by consent on 16 March 2021 – husband seeks week about time – wife seeks a continuum of earlier orders – both parties seek long summer school holiday time. Legislation: Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Cases cited: Banks v Banks (2015) FLC 93-637
Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518
Number of paragraphs: 37 Date of hearing: 18 May 2021 Place: Melbourne Counsel for the Applicant Ms Dellidis Solicitor for the Applicant Kenna Teasdale Lawyers Counsel for the Respondent Mr Puckey Q.C. Solicitor for the Respondent Taussig Cherrie Fildes ORDERS
MLC 2058 of 2021 BETWEEN: MR LEON
Applicant
AND: MS LEON
Respondent
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
13 JULY 2021
THE COURT ORDERS:
1.That the orders of the 16th March 2021 continue in full force and effect, until further order, save as provided for hereafter.
2.That additional to the orders made the 16th March 2021 and notwithstanding any other order to the contrary, on Friday, 10th September 2021, the children, X born … 2012, and Y born … 2014 (“the children”), spend time with their father from 3.30pm after school until 10.00am on Saturday, if the children are not otherwise with their father pursuant to the orders made on the 16th March 2021.
THE COURT ORDERS, BY CONSENT:
3.That for Christmas, unless otherwise agreed, the children spend time with each of their parents as follows:-
(i)from 9:00am on 24 December until 3:00pm Christmas Day in each even numbered year with the Respondent wife, and in each odd numbered year with the Applicant husband;
(ii)from 3:00pm on 25 December until 5:00pm Boxing Day in each odd numbered year with the Respondent wife, and in each even numbered year with the Applicant husband.
4.That during the long summer holidays, in holidays commencing in an odd numbered year, the children spend time with their mother the first week and alternate weeks thereafter and with their father the second week and alternate weeks thereafter.
THE COURT FURTHER ORDERS:
5.That all extant interim parenting order applications are dismissed.
6.That all extant final parenting and property order applications are listed for trial on the 17th January 2022 at 10.00am.
7.That there shall be a case management hearing listing on the 17th September 2021.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Leon & Leon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J:
PRELIMINARY
The proceeding commenced upon the Applicant husband (“the husband”) filing an initiating application on the 26th February 2021 wherein he sought interim and final property orders.
By response filed on the 11th March 2021, the Respondent wife (“the wife”) sought interim and final parenting and property orders. The parenting orders sought were in respect of the two children of the parties marriage: - X born in 2012, now aged 9 years; and Y born in 2014, now aged 7 years (“the children”). The children reside with the wife in the former matrimonial home situate at B Street, Suburb C when with her for in essence 9 nights in 14 during school terms, and for one half of the school term holidays. They otherwise reside with the husband in accommodation obtained by him, being temporary in nature, at D Street, Suburb C.
By application in a case filed on the 11th March 2021, the wife sought interim parenting and property orders. Those orders replicated those set out in the response to initiating application. In support of that application in a case, the wife relied upon an affidavit of evidence sworn by her on the 11th March 2021. Also filed by the wife on the 11th March 2021 was a notice of child abuse, family violence or risk wherein the wife set out at paragraph 12 therein the giving of mutual undertakings by the parties, on the 15th February 2021, not to commit family violence or discuss family law issues in front of the children. The wife alleged that she and the children had experienced family violence and were further at risk of experiencing family violence. She named the husband as the person whom she alleged had subjected or exposed both she and the children to family violence as reported by her to Victoria Police at the Suburb H Station. The wife alleged that: -
For so long as the parties remain separated under one roof at B Street, Suburb C there is a risk that the children and/or parties will continue to be exposed to conflict.
On the 15th March 2021, Victoria Police obtained a safety notice on behalf of the wife and the parties’ children.
On the 16th March 2021, the matter proceeded before his Honour Justice Wilson. The husband had filed no parenting orders material. Orders were made by consent which included the following parenting orders:
4.The Children, X born … 2012 and Y born … 2014 shall live with each of the parties as follows –
a) during school terms –
i.with the husband from the conclusion of school on Thursday (or 9am if it is a non-school day) until the commencement of school Tuesday (or 6pm if a non-school day), commencing 25 March 2021; and
ii. with the wife at all other times; and
b)during school term holiday periods, with the wife for the first half and the husband for the second half in odd numbered years and with the husband for the first half and the wife for the second half in even numbered years.
5.Notwithstanding anything to the contrary, the children shall spend time with the wife on Mother’s Day from 9am until 5pm and with the husband on Father’s Day from 9am until 5pm.
6.For the purpose of changeover, where changeover does not take place at the children’s school, the wife must collect the children from the husband’s residence at the commencement of the children’s time with her and the husband must collect the children from the wife’s residence at the commencement of their time with him.
7.The parties are at liberty to telephone, Skype or FaceTime the children during periods in which they are not in their care provided that such calls are no longer than 15 minutes in duration.
8.The parties are at liberty to communicate with each other concerning the children’s arrangements and welfare by text message only.
9.Each of the parties is permitted to travel interstate with the children during times the children are in that party’s care and forthwith advise the other as soon as practicable but no less than 48 hours in advance of their intention to travel, the details of the destination, accommodation and contact telephone numbers for the children during such travel, such travel to occur outside school hours unless otherwise agreed.
10.Each of the parties is permitted to travel internationally during times the children are in that party’s care and provide no less than 28 days’ written notice of their intention to travel, the details of the destination, accommodation and contact telephone numbers for the children during such travel, such travel to occur outside school hours unless otherwise agreed.
11.The parties –
a)are permitted to attend school and extra-curricular events to which parents would ordinarily be invited, including but not limited to concerts and parent-teacher interviews; and
b)must do all such things and sign all documents necessary to permit each of them to obtain all documents relating to each of the children’s education, including but not limited to reports, notices and newsletters, applications and extra-curricular activities.
12. If any of the children are ill or otherwise require medical attention –
a)the husband and wife must promptly inform the other of the child’s condition and provide details of any treatment (including medication and other matters which must be attended to); and
b)each party is permitted to attend the children’s medical appointments, including when they are not in their respective care.
13. Each party and his or her agents is restrained from –
a)abusing, insulting, belittling, rebuking or otherwise denigrating the other, or any member of the other parties’ family, to, or in the presence of, or within earshot of, the children and allowing the children to remain in the presence of, or within earshot of, any third party engaging in such behaviour;
b)discussing this proceeding, and/or negotiations about parenting, with, or in the presence of, or within earshot of, the children and allowing the children to remain in the presence of, or within earshot of, any third party engaging in such behaviour save for explaining living and contact arrangements pursuant to these orders; and
c)showing to, or leaving accessible to, the children any document connected with these proceedings; and showing to, or leaving accessible to, the children SMS text messages, emails or other written communications, between the parties.
14. Pursuant to ss. 68P and 68Q of the Family Law Act (1975) (Cth) the Court declares that, to the extent that any of these orders conflict with the extant safety notice dated 15 March 2021 (where Constable E is the complainant and the husband is the Respondent and the wife and children are the protected persons), then the safety notice (and any related family violence intervention order) is invalid but only to the extent of the conflict.
On the 28th April 2021, the husband filed an affidavit of evidence as to both parenting and property matters on which he relies.
On the 29th April 2021, the husband filed an amended initiating application to include in particular the seeking of parenting orders.
On the 28th April 2021, an affidavit was sworn by Mr F, Psychologist. It was filed by the husband on the same date. Mr F had prepared a report dated 9 March 2021 which was annexed to that affidavit. It was relied upon by the parties on the hearing of the interim parenting orders applications of each of the parties when the matter was before me on the 18th May 2021. It had also been available to the parties on the hearing before his Honour Justice Wilson on the 16th March 2021.
In April 2021, the husband had filed also, a notice of child abuse, family violence or risk detailing the making of a safety notice order between the parties on the 15th March 2021 and detailing an interim intervention order made protecting the children and the husband at the Magistrates Court on the 29th March 2021. He alleged that both he and the children had experienced family violence with the wife as the perpetrator, but that neither he nor the children were at risk of experiencing further family violence.
Each of the parties filed further affidavit evidence on which they relied for the interim hearing of parenting matters. The wife on the 12th May 2021, and the husband on the 17th May 2021.
These reasons for judgment are directed only to the parties’ competing parenting order applications. The orders are interim in nature. The parties are in dispute as to the time the children should spend with each of them pending a final hearing.
From the wife’s perspective, interim orders were made by consent on the 16th March 2021 (“March 2021 Orders”) after regard was had to the Family Report prepared by Mr F dated 9 March 2021. She seeks that those orders should remain in place pending a final hearing and a testing of the evidence.
The wife seeks however, further specific interim parenting orders to “cover the field” in relation to special occasions and the long school summer holidays. The wife seeks the children spend time with the parties in respect of these periods of time as follows:
(a)during the long summer holidays in holidays commencing in an odd numbered year, with the wife the first week and alternate weeks thereafter and with the husband the second week and alternate weeks thereafter;
(b)on each of the children’s birthdays, if the parties are otherwise unable to agree or convene a joint celebration and the children are not otherwise spending time with both parties that day:
(i)if the children are not at school on their birthday, the children spend time with the parent with whom they wake up that morning until 4:00pm and the other parent from 4:00pm on the child’s birthday to 9:00am the following day;
(ii)if the children are at school on their birthday the children spend time with the parent with whom they are not otherwise spending time with that day pursuant to order 4 of the 16 March 2021 Orders, from after school to 6:00pm;
(c)on each of the parents’ birthdays, from 9:00am on their birthday until 9:00am the following day.
The wife also seeks the following order in relation to the time spent between the children and the parties, as does the husband, for Christmas, unless otherwise agreed:
(a)from 9:00am on 24 December until 3:00pm Christmas day in each even numbered year with the wife, and in each odd numbered year with the husband; and
(b)from 3:00pm on 25 December until 5:00pm Boxing day in each odd numbered year with the wife, and in each even numbered year with the husband.
The husband seeks a variation of the earlier interim parenting orders to provide for the children to spend equal time with each of their parents. He seeks that the children spend each alternate week with each parent, commencing on a Friday. The husband otherwise agreed with the wife that the long summer school holidays should proceed on a week about basis, he had earlier suggested a fortnightly basis. He also, as conveyed in his Counsel’s submissions at the interim hearing, agreed to the wife’s formulation of the long summer holidays order which resulted in the children being with the wife for her birthday (the 23rd December 2021), that date falling in a week when the children would be with their mother. In my view, the children should also spend time with their father on his birthday to include overnight time on an interim basis and the orders shall make provision for this in manner similar to that sought by the husband, which does not appear particularly contentious in any event.
The Court shall not make any orders with respect to the children’s birthdays. X had her birthday earlier in 2021. Y has his next birthday in early 2022. The matter can be listed for final hearing on the 17th January 2022, so a determination as to Y’s next birthday is not presently needed. However, to assist the parties, I note that such birthday falls on a school day, a Wednesday, and that an outcome where the children spend time with the parent with whom they have not been living that morning from 3.30pm until 7pm is likely in the usual course.
BACKGROUND
The husband was born in 1977 and is now aged 43 years. The wife was also born in 1977 and is now aged 43 years. The husband is a professional by occupation. The wife is also a professional by occupation.
The parties commenced their cohabitation in late 2007. They married in 2009 and separated under the one roof in March 2020, on the wife’s evidence and on the 23rd June 2020, on the husband’s evidence, after a period of cohabitation of approximately 13 years.
THE REPORT OF MR F
Mr F attended upon both of the parties and the children in relation to future care arrangements for the children. He concluded and recommended that:
There are three options that might be considered:
i.That the children reside for 9 nights with the wife and 5 nights with the father, and that there be a sharing of holidays and significant dates.
ii.That the children reside for 7 nights with their parents on an equal care basis, that they remain close to their school, and hopefully, one parent can retain the matrimonial home.
iii.That the children reside for 9 nights with the wife and 5 nights with the husband until the beginning of Term 1, 2022, at which time they move to an equal care arrangement.
Mr F met with the parties and prepared his report prior to the police obtaining a family violence safety notice on behalf of the wife and children on the 15th March 2021. This fact, and more importantly the underlying allegations relating to that notice, are important to put to Mr F in testing the recommendations otherwise contained in his report. The allegations made by the husband are equally important to put to Mr F.
Mr F observed that the wife, from the outset, maintained that she had been the children's primary carer, and that whilst she had been involved in the development and establishment of the parties’ business, her primary role was to care for the children. Not surprisingly, her view was that the children should reside predominantly with her; that the husband should vacate the family home; that the children should continue with their normal school; and that an age and stage appropriate parenting time arrangement be implemented.[1] The husband made it clear, as stated by Mr F, that his wish was for an equal care arrangement. That was in the sense of equal time. He emphasised that his relationship with the children was as important as that of their mother, and that he had been actively involved in all aspects of their lives. He also acknowledged that both parents had been extremely involved. The husband told Mr F that he was seeking at the very least, an equal care arrangement and that he was not prepared to vacate the home until his time with the children could be secured, in the manner he sought.[2] Mr F’s early file notes highlighted his concern for the parties’ should they progress down the path of litigation, noting that their positions had reached a point of polarity. He was concerned that:
…their positive parental intentions would become consumed by positional conflict, that the children would become embroiled, that their relationship “if allowed to fester separated under the one roof”, would become increasingly toxic, that the impact on them individually would be significant, and that the fall out for the children would be unhelpful in the extreme.
He concluded regrettably, this is what has transpired.[3]
[1] Family Report of Mr F at paragraph 3.
[2] Ibid at paragraph 4.
[3] Ibid at paragraph 5.
Mr F stated at paragraphs 9 and 10 of his report that:
9. Ms Leon described herself as exhausted, that the conflict has become never ending, that they had lost sight of what was in the best interest of the children, and that from her perspective, the focus of the husband is very much on attacking her and her role with the children. The wife is desperately wanting to maintain her primary care role, seeing herself as pivotal and the emotional lynch pin in the life of the children, and simply states that on the basis of the previous approximation rule, that her role as the children's primary carer should reflect in the post separation arrangement. Regrettably, the parenting conflict has become very much embroiled in financial and property settlement, and their conflict has become petty and highly reactive. The husband has become increasingly stressed and distressed; she has felt threatened and intimidated by what she perceives to be his demands, when all that she has wanted has been to continue in her role as the children's primary carer. She cannot envisage the children spending equal time with their father, does not believe that this is what the children want, that they would struggle with a week about arrangement, and that they need the constant reassurance and calm that she injects into their lives. Put simply, the wife portrayed herself as the children's primary carer that her job has been to look after the children, that this is the responsibility that she has embraced wholeheartedly, and has done so largely as a single parent due to the husband’s work commitments and travel demands.
10. Mr Leon conveyed ongoing dismay that Ms Leon would consider any arrangement other than an equal care arrangement to be in the best interest of the children. He told Mr F that he could easily adjust his work to accommodate the children, that he would easily be able to care for them on a continuous seven day basis, that his work was completely flexible, and that one of his proposals was that once the property in G Town was completed, that he reside there, take an apartment close to the children's school, and travel down each alternate week in order to care for the children during that time. He told Mr F that he simply could not understand why the wife would not agree to a 7/7 arrangement, that she fully understands and is aware of the children's equal dependence and reliance upon him, that they are used to his high level of activity and participation in their lives, that it was not fair to the children to lose his involvement, and that they needed him actively involved in their lives. His position in relation to the wife was that she is a great mother, she cares for the children at a high level, that they both love them, but could not understand why either parent or children should miss out in a post separation arrangement. The husband’s position is that both parents have been equally involved in the children's lives, and have been over the long term, that the children know no different, that they are used to, and happy with both parents, and that whilst he understood that the wife did not want to lose time with the children, that the same was true for him.
X told Mr F that:
…she would be happy with whatever the arrangement, and that she would be upset if she lived with her mother or father but did not get to see the other parent with frequency and regularity. X told me [Mr F] that both her parents were really good, really kind, that she loved them both, that they were both equally easy to live with, but that she wanted their conflict to stop.[4]
[4] Ibid at paragraph 15.
Y also conveyed, in Mr F’s opinion, “…an unequivocal sense of trust, reliance and dependency on both parents.” Mr F noted that Y described them as:
…interchangeable, that he trusted them both, that at times of stress or distress he would equally seek them out, that one parent was not more important than the other, that he could go to either easily for comfort and reassurance, that both were kind, caring, loving and that he could trust and rely upon them both.[5]
However, when speaking about his parents’ conflict to Mr F, Y because increasingly avoidant and restless; he told Mr F that he wanted to go home; he referred to his parents as just arguing and arguing; and stated that he too did not care what the outcome, as long as his parents agreed. Their conflict was “frightening to him.”[6]
[5] Ibid at paragraph 16.
[6] Ibid.
Mr F observed that the practical reality was that the wife had been more actively involved in the children's day to day life, and that the parties’ more traditional division of roles did entail the wife having been the primary carer. Mr F stated that he repeatedly impressed upon the parties that there was no evidence in the social science literature to suggest that any particular parenting schedule was better or worse than any other, and that from a child welfare perspective it made no difference whether the children spent 5, 6 or 7 nights with either of them and the remainder of the time with the other parent.[7]
[7] Ibid at paragraph 18.
Finally, Mr F, at paragraph 20 of his report stated that, the Court can take considerable confidence in the certainty that on condition that a shared care arrangement is implemented, that is, that the children spend a minimum of 5 nights in a 14 night cycle with one parent, that a good outcome will be achieved.
The parties
The wife’s evidence was that she was the primary carer of the children up to the parties’ separation, and continues to fill that role. The wife’s evidence is that, during the relationship and continuing since separation:-[8]
(a)she woke the children in the morning, helped them get dressed, prepared their breakfasts and more recently, school lunches, packed their school bags and drove them to school;
(b)she collected them from kindergarten/school at the school bell and took them to their after school activities or play dates;
(c)she completed their readers with them and assisted with homework, made them an afternoon snack before preparing their dinner;
(d)after dinner, the wife drew the children a bath, helped them get ready for bed and read with them; and
(e)she attended to the supermarket shopping and cooking for the family as well as household chores and tidying.
[8] The Respondent wife’s affidavit sworn 11 March 2021 at paragraph 36.
The wife admitted in her evidence that the husband dropped the children off to school “sometimes 3 or 4 mornings a week” but this was after she was the first up to get the children dressed in the clothes that she had washed and ironed for them, she had made their breakfasts, lunch boxes, packed their bags, and prepared anything they required for their specialist classes or extracurricular activities, she also often buckled them into the car ready for the husband to take them.[9]
[9] The Respondent wife’s affidavit sworn 12 May 2021 at paragraph 23.3.3.
The husband’s evidence went also to his considerable involvement in the lives of the children outside his working hours. He deposed in paragraph 8(d) of his affidavit that his business has suffered significantly as a result of COVID-19 and he is “currently in the process of rebuilding it”. It is the wife’s submission this will demand significant amounts of his time and attention. The wife’s evidence is that the husband worked long hours during the relationship and was not often home much before bedtime.[10] He also travelled interstate frequently[11] and frequently had engagements at night including entertaining business clients,[12] which the wife submitted makes him less flexible and able to cater to the children’s needs and commitments. The husband disputes this, at the least in an ongoing capacity and claims he will be very available to the children and is very competent to deal with their needs, having always done so.
[10] Ibid at paragraph 11.7.
[11] The Respondent wife’s affidavit sworn 11 March 2021 at paragraph 37.
[12] The Respondent wife’s affidavit sworn 12 March 2021 at paragraph 11.7.
The wife claims there are issues in the father’s ability to care for the children five nights a fortnight. The husband claims there are issues with the wife’s care of the children, and wih her interactions with him concerning them. These are all matters for trial.
CONSIDERATION
The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
(a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
(b)Children are protected from physical and psychological harm;
(c)Children receive adequate and proper parenting to help them achieve their full potential; and
(d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
In deciding whether to make a particular parenting order in relation to a child, a Court must have regard to the best interests of the child as the paramount consideration.
In determining a child’s best interests, the Court must consider the matters set out in the primary considerations in section 60CC(2) and the additional considerations in section 60CC(3) of the Act. The obligation to “consider” the various matters in Section 60CC does not require a trial judge to specifically discuss each factor: Banks v Banks (2015) FLC 93-637 at paragraph 49.
Ordinarily it is in a child’s best interests to have a meaningful relationship with both parents. The question of what is a meaningful relationship was considered by Brown J in Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518. At paragraph 26 of that judgment, her Honour concluded that a meaningful involvement is one which is “important, significant and valuable to the child.”
It is common ground between the parties that the children would benefit from having a meaningful relationship with each of their parents. Whilst family violence has been alleged by each of the parties, the parties have obtained orders such that the children were protected. The parties ceasing to reside under the one roof has removed a significant element of the conflict.
The wife’s Queen’s Counsel submitted that any consideration of equal time should be on a testing of detailed evidence at a trial (assuming a resolution is not reached prior to that time) and not at an interim hearing. The Court is of the view that there is merit in such a suggestion. The parties have limited capacity to communicate and co-operate currently. Certainly not sufficient to support an equal time arrangement. Both parties’ evidence contains examples of their conflict when engaging in care arrangements for their children. I am not of the view that it is in the children’s best interests to make orders which alter the current regime for the children who have, on the evidence, experienced significant disruption, hurt and fear, in the circumstances since separation.
The Court is satisfied, on the basis of Mr F’s evidence, that the continuation of the current 16 March 2021 Orders is a good outcome for the children and will allow for the children to have a meaningful relationship with each of their parents. It will not be contrary to the wishes of the children, who in essence want their parents’ conflict to stop and will provide ongoing stability for them until further order or any subsequent agreement between the parties.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 13 July 2021
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Family Law
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