LEVEN & WAITE
[2010] FMCAfam 701
•11 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LEVEN & WAITE | [2010] FMCAfam 701 |
| FAMILY LAW – Interim – parenting orders – parenting program – separation of siblings. |
| Family Law Act 1975, ss.11F, 60B, 60CA, 60CC, 65DAA |
| Goode & Goode (2006) FLC 93-286 |
| Applicant: | MS LEVEN |
| Respondent: | MR WAITE |
| File Number: | MLC 2959 of 2010 |
| Judgment of: | Monahan FM |
| Hearing date: | 11 May 2010 |
| Date of Last Submission: | 11 May 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 11 May 2010 |
REPRESENTATION
| Counsel for the Applicant: | None |
| Solicitors for the Applicant: | Self-represented litigant |
| Counsel for the Respondent: | None |
| Solicitors for the Respondent: | Ms Palpas |
ORDERS
THE COURT ORDERS THAT:
Pursuant to s.68L(2) of the Family Law Act 1975 the children [X] born [in] 1995 (“[X]”), [Y] born [in] 1997 (“[Y]”) and [Z] born [in] 2002 (“[Z]”) be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and such:
(a)Forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service;
(b)Within 48 hours of notification of such appointment the solicitors for the respective parties do provide to the Independent Children’s Lawyer copies of all relevant documents relied upon; and
(c)The Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.
The Independent Children’s Lawyer do prepare a Minute of the orders reflecting his/her preliminary view of what orders he/she will recommend be made as final orders at the Final Hearing.
Pursuant to section 11F of the Family Law Act 1975 MR WAITE born [in] 1975, MS LEVEN born [in] 1976, [X] born [in] 1995, [Y] born [in] 1997 and [Z] born [in] 2002 shall attend an appointment/series of appointments on a date/dates and at times to be advised by the Regional Co-ordinator, Child Dispute Services in the Melbourne Registry of this Court.
All extant applications be adjourned to this Court on 16 June 2010 at 9.45 am before Federal Magistrate Riethmuller for Mention.
UNTIL FURTHER ORDER THE COURT ORDERS THAT:
All previous Orders be discharged.
Both the father and the mother have equal shared parental responsibility for [X], [Y] and [Z].
[X] live with the Mother.
[Y] and [Z] live with the Father.
[X] spends time with the Father if she expresses a wish to do so, at such times to be agreed between [X] and the Father.
[Y] and [Z] spend time with and communicate with the Mother as follows:
(a)
during school term from the end of school on Friday until
7.00 pm on Sunday commencing 14 May 2010 (and recommencing each school term in the first week of school term) and each alternate week-end thereafter;
(b)during school term from the end of school until 7.00 pm every alternate Tuesday commencing 25 May 2010;
(c)for the first half of the Victorian gazetted school term holidays from the end of school until 10.00 am on the second Saturday;
(d)by telephone every Wednesday evening between 7.00 pm and 7.30pm, with the Mother to make the call; and
(e)at such further and other times as agreed in writing between the parties from time to time.
[X], [Y] and [Z] be able to telephone the parent that they are not spending time with at all reasonable times.
Changeover take place as agreed and in default of agreement McDonald’s, [address omitted].
The parties and their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the mother or father to or in the presence or hearing of [X], [Y] and [Z] or any of them, and from permitting any other person so to do.
The Mother be in substantial attendance at all times that the children are spending time with her.
If for whatever reason the Mother is unable to have [Y] and [Z] spend the scheduled time with her, then Mother’s time with [Y] and [Z] be suspended on that occasion with no make-up time to be provided unless by agreement. The Father is to be given at least 24 hours notice, by SMS text message, if the Mother is unable to spend time with [Y] and [Z] as provided by these orders.
The Mother’s time be suspended at 12 noon Sunday on Father’s Day should [Y] and [Z] be spending time with the Mother.
Each party inform the other party in the case of any sickness or injury sustained by the children and details of any medical treatment obtained, as well as the contact details of all Practitioner’s who the children may see.
The Mother ensure that [X] regularly attends school.
Both parties provide a copy of these Orders to the children’s school and the Mother to ensure that the school’s records are amended, so that the Father’s contact details are shown.
Both parties be at liberty to obtain the copies of the children’s school reports, newsletters, photographs and any other correspondence or documentation in relation to the children’s schools.
Pursuant of section 13C of the Family Law Act 1975 the Applicant Mother:
(a)attend and complete, as soon as practicable, the Parenting Apart post separation parenting program (“the Program”) at an organisation as nominated by the Regional Coordinator, Child Dispute Services in the Melbourne Registry;
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program;
(c)pay and otherwise be responsible for all costs associated with the Program; and
(d)provide an appropriate certificate of completion of the program to the other parties or their solicitors.
AND THE COURT NOTES THAT:
(A)Pursuant to ss.62B and 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Leven & Waite is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 2959 of 2010
| MS LEVEN |
Applicant
And
| MR WAITE |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by MS LEVEN (“the mother”) against
MR WAITE (“the father”) seeking various parenting orders in relation to the children of the relationship: [X] born [in] 1995 (“[X]”), [Y] born [in] 1997 (“[Y]”) and [Z] born [in] 2002 (“[Z]”) ([X], [Y] and [Z] collectively as “the children” and [Y] and [Z] collectively as “the boys”).
More specifically, the mother is seeking, among other orders, that:
·the parenting orders made by consent on 25 January 2007 be discharged;
·[X] live with the mother and spend time with the father by agreement;
·the boys spend time with the mother for defined periods and live with the father; and
·changeovers occur at [W] Police Station.
The mother’s application is supported by her affidavit sworn and filed on 31 March 2010. The mother was self-represented however she had the benefit of consulting the duty solicitor prior to the commencement of the interim hearing.
The father filed his response on 10 May 2010 opposing the orders sought by the mother and seeking different parenting orders in relation to the children. Among other orders, he is seeking:
·equal shared parental responsibility for all children; and
·that all children live with him and spend defined times with the mother.
The father relies on his affidavit sworn on 7 May 2010 and filed on
10 May 2010 and the affidavit of Ms W sworn on 6 May 2010 and filed on 10 May 2010. The father was represented by his solicitor,
Ms Palpas, today.
Background
The parties’ background is set out to some extent in their various affidavits. It is clear that the parties have had a history before this Court and that consent orders were made on 25 January 2007 (“the 2007 orders”). The 2007 orders had input not just from the parties, but from an Independent Children’s Lawyer who appeared pursuant to a previous order made by the Court. The effect of the 2007 orders was, that:
·the parties have equal shared parental responsibility for the children;
·the children live with the father for defined periods but otherwise live with the mother;
·changeovers to occur at kindergarten, school or [L] Police Station;
·the father be restrained from alcohol and non-prescriptive drug consumption; and
·both parties undertake and successfully complete a parenting program.
Issues
The dispute today focuses on issues associated with the spend time arrangements with respect to the children. Both the father and mother have provided the Court with a minute of order. The significant issues today are:
·whether the mother should be able to spend time with the boys on Tuesday evenings;
·whether [X] should spend time with the father for defined periods as he proposed or as [X] wishes as the mother proposes; and
·whether the mother should be required to complete a post-separation parenting course as required by the previous orders.
Agreed and disagreed facts
It appears that the parties are in agreement, or not in significant disagreement, in respect of a number of parenting matters. They appear to agree that:
·the current orders should be discharged;
·both should retain equal shared parental responsibility for the children;
·until further order, [X] should live with her mother and that the boys should live with their father and spend time with the mother;
·the time that the mother shall spend time with the boys every alternate weekend from after school on Fridays until 7:00pm on Sundays and effectively for half of the school holidays;
·the mother is to provide at least 24 hours’ notice to the father if she is unable to spend time with the boys and that, unless there is an agreement to the contrary, there be no make up time in this situation;
·both parties have access to all school reports, etcetera; and
·the school should be aware of the orders in this matter.
The parties appear to disagree about:
·whether the father should spend defined time with [X];
·whether the mother should spend each Tuesday after school until 7:00pm with the boys; and
·as to how telephone time should be facilitated.
Parties’ submissions
Ms Palpas, for the father, provided the Court with a comprehensive minute. The mother also provided the Court with a comprehensive minute which, it is understood, she was assisted with by the duty solicitor.
Law
The Full Court of the Family Court decision of Goode & Goode (2006) FLC 93-286 (“Goode”) guides this Court’s approach in making interim decisions and interim orders in respect of parenting disputes. At paragraph 81 of that decision, the Full Court noted:
“In making interim decision the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child.”
More specifically, this raises the reality today that the Court cannot fully determine issues of credit as the material and evidence being presented the Court has not been tested by cross‑examination. That having been said, also in paragraph 81 of the Goode decision, the Full Court indicated that the legislative pathway must still be followed. In other words, the relevant provisions of the Family Law Act1975 (“the Act”) after the 2006 shared parenting amendments must be followed in the interim hearing.
It would appear that there is considerable distrust between the parties in this case, and no doubt the history of the matter will be the subject of evidence and cross‑examination, should a final hearing be needed.
There is no issue of equal shared parental responsibility to determine today. The dispute is simply limited to the issue of the children’s time with the respective parent that they are not otherwise living with, at least on an interim basis.
The Full Court’s decision in Goode requires this Court, when making interim determinations, to identify:
·the competing proposals,
·the issues that are in dispute; and
·any agreed or uncontested relevant facts.
·as has already been outlined.
At this point, it is noted that s.60CA of the Act provides:
“In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.”
To determine the children’s best interests, the Court must consider the primary considerations set out in s.60CC (2) of the Act, as well as the additional considerations referred to s.60CC (3) of the Act which are also relevant.
Primary considerations: s.60CC (2)
The Court is required under s.60CC (2) (a) of the Act to consider the benefit to the children of having a meaningful relationship with the children’s parents. However, it is noted that meaningful does not necessarily mean equal. Nevertheless, it clearly signifies that both parties should be involved with their children and consequently indicates an expectation of time to be spent.
The right of a child to spend time with each parent and extended family is a right that children have pursuant to s.60B of the Act. Consequently, the Court will in all likelihood need to give considerable weight to this factor at a final hearing should such be needed.
The Court is required under s.60CC(2)(b) of the Act to consider the need to protect the children in this case from physical or psychological harm and being subjected to or exposed to abuse, neglect, or family violence.
There is no doubt that it would be in the children’s best interests to develop a meaningful relationship not just with their father, but with their mother. That needs to be balanced in respect of protecting the children from any physical or psychological harm and the like.
Additional considerations: s.60CC (3)
The Court is required under 60CC (3) (a) of the Act to consider the views of the children. These are again matters that will need to be tested at a final hearing should such be needed.
On the evidence of the parties submitted today, there are some disturbing statements being made by the eldest child, [X]. The Court has formed the view that the matter would be assisted by the parties and [X] attending appointments with the family consultant pursuant to s.11F of the Act in order to identify the issues that are in dispute, in particular [X]’s views, and whether those views reflect her best interests.
As to the nature of the relationship between the child and each of the parents, there is an issue about [X]’s relationship with the father that clearly needs to be addressed.
At this stage there is question mark hanging over the respective evidence of the parties in respect of their cooperation in the parenting of these children. As to the respective capacities to parent, this will need testing as well. As to the extent they have fulfilled or failed to fulfil their responsibilities to date, we again have conflicting stories.
The Court must also consider the likely effect of any changes in the children’s circumstances. Both parties have accepted a need, at least on an interim basis, to separate the siblings. Whether this remains is, of course, a question that the Court would have to carefully consider.
Conclusion
The Court agrees that the matter will be assisted by the appointment of an Independent Children’s Lawyer, and an order to that effect will be made today.
The Court has also formed the view, as indicated, that the matter will be assisted by an order under s.11F of the Act for the parties to attend such appointments, with [X], as may be considered appropriate by the family consultant and for a report to be obtained that would incorporate the views of [X].
The Court proposes adjourning the matter to a date in June to facilitate this process. When the matter returns to Court, the Court can consider whether the matter is suitable to be set down for a final hearing and/or whether a more complete family report is needed. The Court would also, hopefully, have the input of the Independent Children’s Lawyer if appointed at the adjourned date.
As to the interim parenting arrangements, the Court is satisfied that the presumption of equal shared parental responsibility should not be rebutted and, in any event, the parties are in agreement that they should retain equal shared parental responsibility for all three children.
As to the live with arrangements, both parties are similarly in agreement, at least on the interim basis. As to the spend time arrangements arising from the boys living with their father and [X] living with her mother, the Court is satisfied that the mother’s proposals regarding [Y] and [Z] would be in the boys’ best interests, and the Court considers they are consistent with s.65DAA of the Act. The Court does not consider on the material before it that a defined spend time order in respect of [X] is in her best interests, but may reconsider this issue following the s.11F process.
The Court is satisfied that changeover should occur at a public place when not at school, and until further order, this shall occur in a public place as agreed between the parties, and failing agreement, McDonald’s Family Restaurant [address omitted].
Both parties are in agreement about non‑denigration orders. Consequently, that order will also be made today.
As to communication, until further order, the children can telephone the parent that they are not otherwise living with at all reasonable times.
The mother can telephone the boys when they are living with the father as agreed or, failing agreement, each Wednesday between 7:00pm and 7:30pm. The parties will need to exchange phone numbers. There will not be an order today that would require either party to have a landline, but there will be an order that the parties facilitate the children’s wishes and make the children available for phone time.
There will be orders that both parties provide a copy of these orders to the relevant children’s schools and ensure that each parent is listed as a contact for the children. Both parties will be under an obligation to ensure that each of the children regularly attend school but, in particular, the mother in relation to [X].
The right to settle the reasons for this interim decision is reserved.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 29 September 2010
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