Lombard & William
[2007] FamCA 1693
•17 August 2007
FAMILY COURT OF AUSTRALIA
| LOMBARD & WILLIAM | [2007] FamCA 1693 |
| FAMILY LAW – CHILDREN – With whom children spend time – Agreed that children live with the wife – Husband has work routine involving working four days on and then having four days off – Wife concerned that it was disruptive for children to spend time with the husband mid-week, wished to limit time with husband to the weekends he was rostered off – Consideration of s 60CC factors – Wife changing residence and children’s schools is a positive change in children’s circumstances – Wife’s proposal for time spent with the husband would result in the children spending approximately one half of existing total time with the husband – Such a proposal is not child focussed – In the children’s best interests to remain spending time with the husband mid-week – Children to spend substantial and significant time with the husband as sought by him – Mother to be restrained from telephoning or otherwise communicating with the children whilst they are in the husband’s care |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA & 65DAA |
| APPLICANT: | Mr Lombard |
| RESPONDENT: | Ms William |
| FILE NUMBER: | ADF | 847 | of | 2006 |
| DATE DELIVERED: | 17 August 2007 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | BURR J |
| HEARING DATE: | 31 July, 1 & 2 August 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Brian McQuade |
| SOLICITOR FOR THE APPLICANT: | Adey Lawyers |
| COUNSEL FOR THE RESPONDENT: | In person |
| SOLICITOR FOR THE RESPONDENT: | In person |
Orders
That save and except for the Orders made herein by me on 31 July 2007, 1 August 2007 and 2 August 2007, all previous current Orders are hereby discharged.
That by consent, the parties have equal shared parental responsibility for the children K born … July 1995 and B born … May 2000.
That by consent, the wife be permitted to move the said children’s place of residence from T in the State of South Australia to L in the State of South Australia.
That in addition to the previous Orders made herein by me, the children spend time with the husband:-
(a)From the conclusion of school on Wednesday 15 August 2007 to the commencement of school on Friday 17 August 2007 and each eighth week thereafter;
(b)From the conclusion of school on Wednesday 22 August 2007 to the commencement of school on Friday 24 August 2007 and each eighth week thereafter;
(c)From the conclusion of school on Friday 7 September 2007 to the commencement of school on Monday 10 September 2007 and each eighth week thereafter PROVIDED THAT in the event that the said children are in the care of the husband on Mother’s Day, he do return the children to the care of the wife by no later than 12 noon on Mother’s Day;
(d)From 10.00 am on Saturday 15 September 2007 to the commencement of school on Monday 17 September 2007 and each eighth week thereafter PROVIDED THAT in the event that the said children are in the care of the husband on Mother’s Day, he do return the children to the care of the wife by no later than 12 noon on Mother’s Day;
(e)From the conclusion of school on Monday 24 September 2007 to the commencement of school on Wednesday 26 September 2007 and each eighth week thereafter;
(f)From 5.00 pm on 24 December 2008 until 3.00 pm on 25 December 2008 and each alternate year thereafter;
(g)From 3.00 pm on 25 December 2009 until 3.00 pm on 26 December 2009 and each alternate year thereafter;
(h)For two weeks in the second half of each Christmas school holiday period commencing January 2009, such periods to commence on the first day of the husband’s period rostered off work in January of each year;
(i)At such other times as may be agreed between the parties.
That the wife be restrained and an injunction is hereby granted restraining her from telephoning or otherwise communicating with the said children whilst they are in the husband’s care, save and except in an emergency impacting upon parenting issues.
That in the event that the said children require any additional books, educational materials, clothing or other belongings during times that they spend with the husband, the parties make arrangements to exchange those items other than at the said children’s school(s).
IT IS NOTED that publication of this judgment under the pseudonym Lombard & William is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADF 847 of 2006
| MR LOMBARD |
Applicant
And
| MS WILLIAM |
Respondent
REASONS FOR JUDGMENT
The Applications
When the trial proceedings commenced before me, the parties were asking me to resolve issues relating to their two children and property settlement.
Their two children are K (“[K]”) born in July 1995 and B (“[B]”) born in May 2000. Thus K is presently 12 years of age and B 7 years of age.
To their credit, by the conclusion of the trial, the parties had resolved all issues of property settlement and a number of the issues relating to their children. Remaining for my determination is the question of what time or times the children are to spend with the husband, it having been agreed that the children are to live with the wife. That agreement, along with others, was recorded in consent orders made by me during the course of the trial proceedings.
The parties have been abiding interim orders made on 7 November 2006. Those orders were crafted to suit the husband’s work roster which involved him working four days and then having four days off. He has been spending time with the children during those days and nights that he is rostered off. The wife’s specific concern is that it is proving disruptive for the children to have mid-week time with the husband and wishes to confine it to weekends when he is rostered off. The husband argues that it will severely limit his time if that is the case and seeks the continuation of the present interim arrangement. They are also in dispute about Christmas Day. The wife wishes to alternate Christmas Days. The husband wishes to share each Christmas Day.
Background
It will not be necessary for me to recite any particularly detailed background given the agreement reached by the parties in large part and in particular in relation to property settlement issues.
The husband is 37 years of age and the wife 31. They commenced their cohabitation in 1998, separated for a brief period of some 3 months in late 2000 and married in December 2002. They separated in May 2005 after a total period of cohabitation of some 7 years.
The child K was born to the wife in July 1995. The husband is not K’s biological father but he has always treated her as his daughter since the parties commenced their cohabitation and subsequent to their separation. B is the child of both parties and was born in May 2000.
In October 2001 K was diagnosed as suffering from leukaemia. The husband resigned from his employment and assisted in K’s care. The wife was engaged in employment for the whole of the period that the parties cohabited. The husband resumed work as a contractor with C Company in 2002. He has remained in that position since.
Since the separation the husband has spent regular periods of time with the children, initially pursuant to a consensual arrangement between the parties and subsequently pursuant to interim orders made by this Court.
In November 2006 a psychologist, Ms N, undertook a Family Assessment to assist the parties in these proceedings.
The evidence
Each of the parties gave evidence in support of their respective applications. The husband called no additional evidence. The wife called evidence from her partner Mr M.
The Court called evidence from psychologist, Ms N.
Relevant Law
Significant amendments were made to the Family Law Act with the passage of the Family Law Amendment (Shared Parental Responsibility) Act 2006. I set out and deal with the relevant provisions below:
Section 60B
The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
One matter of critical importance was not altered by the amending legislation. Section 60CA still requires the Court to “regard the best interests of the child as the paramount consideration” in deciding what, if any, parenting order to make. In making that determination as to what would represent the best interests of the child, the Court is guided by the provisions of Section 60CC which is divided into primary and additional considerations. I will deal with those matters now.
Section 60CC
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
Some guidance is found in the legislation as to what might constitute a “meaningful relationship”. That can be found in the Objects and Principles outlined in Part VII of the Act. In particular Section 60B(1) states one of the objects as:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.
As to the principles enumerated in Section 60B(2), the first three appear the most relevant in the enquiry as to what constitutes a “meaningful relationship” and they are:-
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents share duties and responsibilities concerning the care, welfare and development of their children;
Each of the parties is significant to their children K and B. Each of them enjoys a significantly meaningful relationship with their children and their children with them. Any orders I make will recognise the need for the maintenance of the children’s relationships with both of their parents.
(b)the need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.
No issues of relevance emerge for my consideration pursuant to this sub-section.
Additional considerations
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's wishes;
Each of the parties gave evidence as to various views expressed to them by the children in terms of what might be appropriate parenting arrangements in this matter. Those views tended to vary according to the parent to whom they were speaking. In my view the only really reliable evidence as to the children’s true views on relevant matters, was that given by Ms N in relation to her interviews with the children on 9 November 2006 and as set out in her report dated 22 January 2007.
Whilst the children expressed some concerns, the overall impact of the evidence from Ms N is that each of the children enjoys a close and loving relationship with both parents. Essentially their views were that they did not want anything much to change about the present arrangements.
Variously in her interview with Ms N, K told her (paragraph 2.2):-
“ ….. [K] told me that mum is nice and likes to help a lot.”
“ Mum understands [K] and is coming to her presentation at assembly today.”
“She said that her relationship with mum is good most of the time and when asked, [K] said she is ‘pretty close’ with mum.”
“When asked how she felt about the separation, [K] said she didn’t have a dad around much and she missed him a lot.”
“When asked about dad, [K] said she gets along with him a lot and that they like lots of stuff.”
“She feels that she is as close to dad as she is to mum.”
“When asked, [K] said that nothing upsets her about her dad.”
“When asked about her preference regarding frequency of seeing dad, [K] said she would like to see him once or twice per week.”
“I also asked about sleepovers with dad and [K] said that they have gone very well.”
“I asked [K] what she does when she sees dad and she said nothing much. She normally enjoys her time, but would probably prefer to go on weekends.”
“When asked about her preference for residence, [K] said that she used to want to live with her dad but now she does not know where she would prefer to live.”
B, probably because of her age, was less responsive to Ms N (paragraph 2.3):-
“When asked about her relationship with mum, [B] at first said she did not know but then told me that they draw pictures and mum reads her a book.”
“[B] told me that dad is nice and they feed the dog together and draw pictures.”
In her summary (paragraph 3), Ms N records:-
“When asked, [B] said she did not want to change the current arrangement.”
(b)the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
The children’s relationships with their parents is not an issue in this matter. Each of the parents believes that they enjoy close and loving relationships with the children. The evidence supports that. Ms N supports that view.
Whilst clearly being somewhat unhappy about the interview process, both children indicated to Ms N and presented to her in such a manner, that it was clear that they loved both of their parents and enjoyed comfortable and loving relationships with each of them. Their relationships with the wife’s partner Mr M, also appear to be sound. K said of him (paragraph 2.2):-
“[K] said that she does not get on well with him, although he is nice to her. He is nice to her when they do family stuff together but [K] feels uncomfortable because dad is not there.”
For her part, B was quite unequivocal, and said (paragraph 2.3):-
“When asked about [Mr M], she said that he is nice to her.”
Whilst concerned about B’s reluctance to attend on some of the ordered visits with her father, the wife nonetheless acknowledged that such conduct did not imply or indicate that B had a poor relationship with her father, and in fact, quite the contrary.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
and
(f)the capacity of:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
to provide for the needs of the child, including emotional and intellectual needs;
and
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
In my view it is convenient and appropriate to deal with these three sub-sections together as they raise similar issues for my consideration.
The close relationship that each child enjoys with both of their parents is a clear indicator that, overall, the parties have attended properly to their parental obligations. Whilst each had some criticism of the role played by the other, none of them was, in my view, of a serious nature.
The wife was concerned that B’s reluctance at times to depart on the occasions that she is to see her father, indicated some serious underlying issues and problems for B. The husband reported that he had no problems with B upon her arrival. She remained happy and content throughout. B showed no such signs of distress or concern when the handovers were conducted at her school. The overwhelming majority of handovers occur at the children’s school.
It was Ms N’s evidence that there could be a number of explanations for B’s demeanour at those times and that no deep seated or concerning problems for B were identified. She thought B simply needed to make the adjustment to the fact that those occasions were part of her life, that those occasions she spent with her father were part of her “normality”. I accept that the wife does what she can to encourage B to attend. She simply needs to be persistent. It was Ms N’s evidence that B would ultimately become accustomed to the regime and that those difficulties would at least diminish if not disappear. The wife appeared prepared to accept that advice and to continue in her efforts.
Certainly no concerns arise for B from other common indicators, such as her schooling. Her most recent report was an excellent one and she seems to be progressing well in all respects, not just educationally but in terms of her socialisation.
For his part, the husband was concerned at what he perceived to be the wife’s intrusion upon his time with the children. The wife acknowledged that she telephoned the children every night that they were with the husband. She had recently, in accord with Ms N’s recommendation, stopped telephoning on the night that handover occurred but that she had continued to telephone them on each other night of their time in the husband’s care. It was Ms N’s evidence, and is my view formed from the evidence, that the wife’s conduct in that regard is unhelpful and is not making it easy for the children to settle into their time with their father or for the husband to parent them during those periods in an unhindered manner. I intend to order that she cease making those calls. In all other respects each of the parents encourages the relationship the children have with the other parent. They acknowledge the children’s love for the other parent.
K appears to have made appropriate adjustments to her routine although both children indicated some embarrassment about having to leave for school on the day of handover, loaded up with extra books, educational materials and clothing. At my suggestion, the parties agreed that it would be appropriate for the husband to collect their additional requirements from their home prior to collecting the children from school and return those additional belongings to the wife’s premises after dropping them back at school. That will avoid the children’s peer embarrassment and potentially make handovers and the time that the children spend with each of their parents, more pleasurable.
The parties also need to work at demonstrating to the children a better relationship between themselves, even if none exists. The better outcome would be for them to work at improving their relationship. However, if they feel unable to do so, they should at least present to the children as enjoying a good relationship. Their clearly strained relationship observed by the children, makes life much more difficult for the children. Ms N offered her services to assist in that regard and in any other respect if the parties desire. The parties indicated that they would likely accept that offer. Given that, I do not believe it would be appropriate to make any orders with respect to same.
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The wife is moving with the children from T to L. Her partner Mr M has purchased a farm in L. It has residential premises on that property where they will all reside together. This involves a change of schooling for the children. K certainly indicated to Ms N that this was a concern for her, advising that she had had seven changes of address in seven years. She seemed, however, accepting of this latest move. It certainly appears to be a more permanent move.
Initially the husband was reluctant to accept the move and another change of schooling. However, by the conclusion of the trial proceedings, he acknowledged that it was appropriate that the children move with their mother and her partner to L and that they both attend D Primary School and then D High School. Thus I believe that this change in the children’s circumstances is a positive one for them.
The wife’s application to the Court though does involve what I deem to be a significant change in the children’s circumstances. Pursuant to the present interim orders the husband sees his children on 15 nights in an eight week period. The wife’s proposal would result in the children spending 8 nights in an eight week period with their father, an average of only one night per week and approximately one half of the existing total of time. It would also entail a period of some four weeks when the children would not see their father at all.
It was Ms N’s clear and unequivocal view that such a change was not warranted and did not suit the children’s best interests. She acknowledged that there were some difficulties, as the wife indicated in her evidence, with the disruptions of mid-week time taken by the husband. However, she was of the view that such inconvenience and disruption was significantly outweighed by the benefits brought to the children of having regular time spent with their father. She was clearly of the view that the weekly contact the children have with their father is significant to the children and important in their development. She saw no justification for reducing that time. She was of the view that the wife’s proposal was not child focussed.
It is my view too, based on the evidence, that such a change in the children’s circumstances would not be good for them and would not represent their best interests.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
and
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
and
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture): and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
and
(j)any family violence involving the child or a member of the child's family;
and
(k)any family violence order that applies to the child or a member of the child's family; if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
There are no issues of relevance for my consideration which emerge from these sub-sections.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
In my view, these proceedings will be the end of the litigation between the parties. Each of them clearly indicated a desire not to have to resolve their disputes in the future by way of Court proceedings. Each indicated a clear willingness to try and improve their communications in order to resolve any disputes between themselves. They also accepted Ms N’s offer to provide them with any counselling advice or assistance if they thought they needed it.
(m)any other fact or circumstance that the court thinks is relevant.
No other matters of relevance emerge for my consideration pursuant to this sub-section.
Section 60CC(4)
Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b)has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
Each of the parties has involved themselves as fully as is possible in the lives of their children. Each has taken every opportunity to spend time with them. Each has fulfilled their relevant parental obligations to care for all of the children’s needs and to maintain them.
Section 61DA
When making a parenting order in relation to a child, the court 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.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child ) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The parties have agreed that it is appropriate that they continue to enjoy equal shared parental responsibility for the children.
Section 65DAA
Equal time
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
The husband has not sought to spend equal time with his children. He simply cannot do so due to his work roster which is four days on and four days off.
Substantial and significant time
If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
What the husband seeks in his application amounts to substantial and significant time. His work roster is four days on and four days off. He seeks to have the children with him on each of those four days that he has off from employment. He will also be sharing school holiday time with the children.
The wife is not in favour of the rostered arrangement. Her main concern is the mid-week disruption at school times. However, in my view the best interests of the children would be represented by the children spending the substantial and significant time with the husband as sought by him.
Summary
Whilst important to the parties in this case, the problems expressed by them in terms of their relationship with each other and in terms of their arrangements for their children, are refreshingly minor within the context of proceedings often taken in this Court. The children are largely unaffected by the dispute between the parents. The detrimental effects that they are suffering can easily be remedied by the parents improving their level of communication or at least appearing to the children to have improved their level of communication and cooperation.
Each of the parents brings a great deal to the lives of their children. The children should have the benefit of significant and regular contact with each of their parents unhindered by the concerns or intrusions of the other.
In my view, the best interests of the children would be represented by them spending all available time with their father, which in any event only amounts to some 15 nights in 56. In addition to that, of course, is the school holiday time they will spend with their father.
As to the dispute between the parties over Christmas Day, I am of the view that the evidence supports a finding that the children would enjoy seeing both of their parents on Christmas Day. Thus I believe a shared arrangement on each Christmas Day is better than the children only seeing their parents on alternate Christmas Days.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr.
Associate
Date: 17 August 2007
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Injunction
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