Lucero and Lovel
[2009] FMCAfam 990
•18 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LUCERO & LOVEL | [2009] FMCAfam 990 |
| FAMILY LAW – Interim parenting – two children aged 9 years and 11 years – issue of time to be spent with the children and the practicability of such time – AVO in place with mother as protected person – father works full time and assisted by paternal grandmother in caring for children – mother works part time although working hours in dispute. |
| Family Law Act 1975, ss.4, 11C, 60B, 60CA, 60CC, 61C, 61DA, 65DAA, 65DAC, 65DAE |
| Goode & Goode [2006] FamCA 1346 R & R: Children’s Wishes (2000) FLC 93-000 |
| Applicant: | MR LUCERO |
| Respondent: | MS LOVEL |
| File Number: | SYC2534 of 2009 |
| Judgment of: | Kemp FM |
| Hearing date: | 4 September 2009 |
| Date of Last Submission: | 4 September 2009 |
| Delivered at: | Sydney |
| Delivered on: | 18 September 2009 |
REPRESENTATION
| Solicitors for the Applicant: | Barkus Doolan Kelly (Ms Winning) |
| Solicitors for the Respondent: | BJS Legal (Ms Soszyn) |
ORDERS PENDING FURTHER ORDER:
That the children live with the father as follows:
(a)from after school on Thursday until the commencement of school on Monday each alternate week;
(b)from after school on a weeknight to be agreed between the parties, but failing agreement a Wednesday, until the commencement of school the following day in each intervening week; and
(c)otherwise as agreed between the parties.
That the children live with the mother at all other times.
IT IS NOTED that publication of this judgment under the pseudonym Lucero & Lovel is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC2534 of 2009
| MR LUCERO |
Applicant
And
| MS LOVEL |
Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Application filed 22 June 2009 and as amended by a minute of proposed order, the applicant father seeks certain interim parenting orders in respect of the children of the relationship, [X] born in 1998 (“[X]”) and [Y] born in 2000 (“[Y]”), currently aged 11 years and 8 months and 9 years and 1 month respectively (“the children”), relevantly as follows:
1. The children live with the father as follows:
1.1 From after school on Thursday until the commencement of school on Monday each alternate week;
1.2 From after school on Wednesday until 8.30am on Saturday in each intervening week; and
1.3 Otherwise as agreed between the parties.
2. The children live with the mother at all other times.
The Respondent mother in her Response filed 2 June 2009 seeks her own interim parenting orders, relevantly as follows:-
4. That the father shall spend time with the children as follows.-
(a) Each alternate weekend between the hours of 7pm Friday and 7pm Sunday;
(b) Each Wednesday between the hours of 6:30pm and 9pm.
On the 10 June 2009, being the first return date of the father’s application, this Court made the following final orders by consent:-
1. The children live with the father as follows:
1.1 For the first half of each school holiday period in even numbered years and for the second half of each school holiday period in odd numbered years and if the calculation of one half would mean the children were to spend half the day with the father then that half of the school holiday period shall conclude at 3:00pm on that half day;
1.2 Notwithstanding anything elsewhere contained in these Orders:
1.2.1 from 9:00am to 5:00pm on Father’s Day;
1.2.2 from 9:00am to 5:00pm on the father’s birthday where it falls on a weekend or during school holidays;
1.2.3 from 5:00pm to 8:00pm on the father’s birthday where it falls on a school day;
1.2.4 for not less than 2 hours on each child’s birthday at such time as is agreed between the parties or in default of agreement between 5:00pm and 7:00pm;
1.2.5 from 3:00pm on Christmas Eve to 3:00pm on Christmas Day in even numbered years and from 3:00pm on Christmas Day until 3:00pm on Boxing Day in odd numbered years;
1.3 at other times as agreed by the parties in writing, which includes by email.
2. Changeovers for the purpose of the children spending time with each parent are to take place at the mother’s residence unless such changeovers occur at the commencement or conclusion of school when the changeover will take place at the children’s school.
3. Notwithstanding the provisions contained in Order 1 the children live with the mother as follows:
3.1 from 9:00am to 5:00pm on Mother’s Day;
3.2 from 9:00am to 5:00pm on the mother’s birthday where it falls on a weekend or during school holidays;
3.3 for not less than 2 hours on each child’s birthday at such time as is agreed between the parties or in default of agreement between 5:00pm and 7:00pm;
3.4 from 3:00pm on Christmas Eve to 3:00pm on Christmas Day in odd numbered years and from 3:00pm on Christmas Day until 3:00pm on Boxing Day in even numbered years.
4. Each child may communicate with each parent at such times as the child so wishes and the other party shall facilitate and encourage such communication by telephone, in writing or by other electronic means including email.
5. The husband and wife have equal shared parental responsibility in consultation with one another for making decisions on major long term issues relating to the children.
6. The mother have responsibility for making decisions for non-major long term issues relating to the children when they live with or spend time with her, and the father have responsibility for making such decisions when the children are living with or spending time with him.
7. Each party notify the other as soon as possible, and in any event within 24 hours of any serious illness or injury suffered by the children whilst with that party.
8. Each party notify the other, not more than 24 hours after any change to their address and/or landline and/or mobile telephone numbers and/or their email address.
9. Each party notify the other of the address and telephone numbers of the places where the children will be staying during holidays spent away from their residence, not later than 48 hours prior to the commencement of any holiday period.
10. Each party be and are hereby restrained from using physical punishment as a form of discipline when the children are living with them or spending time with them pursuant to these Orders.
11. Each of the parties be and are hereby restrained from discussing these proceedings or any matters arising from these proceedings with or within the presence or hearing of the children or either of them.
On the 10th June 2009, the Court also ordered that the parties attend a Child Dispute Conference with a Family Consultant. This conference was held on 23 June 2009 with Ms Rachel Brace. The Consultant prepared a report as the Conference was reportable pursuant to s.11C of the Family Law Act 1975 (Cth) (“the Act”).
At the hearing, Ms Winning appeared for the father and Ms Soszyn appeared for the mother.
Principles to be applied and procedure to be followed
The best interests of the child remain the paramount consideration: s.60CA of the Act.
The best interests of the child are to be determined by an examination of the factors as set out in s.60CC of the Act. These factors are to be examined, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s.60B of the Act, as follows:
(1) The “objects”… 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.
(2) The “principles” … 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 been 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 jointly 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 a right to enjoy the culture with other people who share that culture).
The Full Court in Goode & Goode [2006] FamCA 1346 set out a number of procedural steps to be followed on an interim application, namely:
(a) Identifying the competing proposals of the parties;
(b) Identifying the issues in dispute;
(c) Identifying any agreed or uncontested relevant facts;
(d) considering the matters in s.60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s.61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s.65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Evidence
The father relied on:-
a)His Affidavit sworn on 30 April 2009.
b)His affidavit sworn on 27 August 2009.
c)Affidavit of Ms F (the father’s mother) sworn on 9 June 2009.
The mother relied on:-
a)Her Affidavit sworn/affirmed on 1 June 2009;
b)Her affidavit of sworn/affirmed on 26 August 2009.
The following document was considered by the Court:
Document
Date
Child Dispute Conference Memorandum
23 June 2009
The Court, as stated, hears this matter on an interim hearing basis, as the parties have confirmed there is urgency in obtaining relief.
The Court’s determination, therefore, is based only on a study of the documents before it, including affidavits read and the submissions of the parties’ legal representatives. There is no provision at the interim hearing stage for a more extensive hearing where evidence can be tested in cross-examination and where the Court can make findings of fact, after testing credibility and truthfulness.
Proposals
The parties seek the various competing orders set out above.
Issues
The essential issues in dispute the subject of determination, are time to be spent with the children and the practicability of such time.
Factual matters
There appear to be a number of relevant uncontested facts, as follows:
a)The father was born in 1966 and is currently 43 years old.
b)The mother was born in 1969 and is currently 40 years old.
c)The parties commenced cohabitation and were married in 1996 in China. The children were born in 1998 and 2000.
d)On 16 May 2008, a final Apprehended Violence Order (AVO) was made in the Local Court of New South Wales at Fairfield against the father, with the mother as the protected person. This Order remains in place until 16 May 2010.
e)The parties physically separated on 28 February 2009, when the father left the former matrimonial home.
f)The father’s occupation is [in the Information Technology Industry] and he works full time, returning from work at around 6.00pm each weekday.
g)The mother’s occupation [in the Financial Industry]. She works part time (from 9am to 2:30pm, 5 days per week), although these hours are the subject of some contest (see paragraph 17(f) below).
h)The father lives at Property M with his mother.
i)The mother lives at Property B being the former matrimonial home. Her parents appear to temporarily reside there, as they are visiting her from their usual residence in China.
j)The children attend [G] School. [X] is in year 6 and [Y] is in year 4. Both are performing well.
k)On 30 April 2009, the father commenced these proceedings.
There appear to be a number of disputed facts, as follows:
a)The mother asserts that the children heard the violent events on the 29th March 2008 which resulted in the making of the final AVO on 16 May 2008. The father says that the children did not see these events. He is silent as to whether he believes that they heard these events.
b)The mother denies that she has refused the father spending time with the children. The father asserts that the mother has done so, motivated by financial considerations.
c)Whether the mother has inappropriately physically disciplined the children.
d)The true expression of the children’s views.
e)Whether the children are fearful of the father.
f)The actual time the mother spends working. The father has not disputed the mother’s evidence as to her working times, but his mother (the paternal grandmother) has put that issue into contention, based on her own observations between the 1st and 29th May 2009, where she says the mother returned home from work between the hours of 5.00pm and 6.00pm each evening.
Background
Since the parties’ separation, the children have primarily lived with the mother, with the father spending alternate weekend time with them.
The father has been involved in the care of the children and has assisted them and continues to assist them with homework and academic tasks.
The mother says that she has made the children available to spend time with the father by agreement beyond the alternate weekends, which she says she now seeks as formal interim orders.
Presumption of equal shared parental responsibility
Section 61DA(1) of the Act creates a presumption, which the Court must apply before it makes any parenting order in respect of a child (and this is the case whether or not a party has sought a specific order for equal shared parental responsibility). By virtue of this section, it is presumed that it is in the best interests of the child concerned that his or her parents have “equal shared parental responsibility” for the child.
The presumption, however, does not apply if there are reasonable grounds for the Court to believe that the child concerned has been subject to abuse or family violence (s.61DA(2)) or in the case of an interim hearing the court considers it inappropriate (s.61DA(3)) or the presumption may be rebutted by evidence which satisfies the Court that it would not be in the interests of the child for his parents to have such equal, shared parental responsibility (s.61DA(4)) [emphasis added].
As the Full Court states in Goode & Goode [2006] FamCA 1346, unless displaced by court order, the parties’ parental responsibility may be exercised either jointly or severally. See s.61C of the Act. The effect of an order for equal shared parental responsibility, is to require the parents not to reach a joint decision but to consult one another and make a genuine effort to reach agreement about major long-term issues in relation to the children (s.65DAC of the Act). This consultation is not required to be face to face and may still occur in circumstances where the parties are in high conflict provided there is a willingness and an ability to communicate.
The phrase “major long-term issues” is defined in s.4(1) of the Act, as follows:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent. [Original emphasis]
If the issue is not a “major long-term issue”, then consultation is unnecessary and parents may act unilaterally (s.65DAE of the Act).
Parental responsibility
The Court has already found that the presumption will apply in this case, as there was a final order made by consent on 10 June 2009, that each of the parties should have equal shared parental responsibility for the children.
Under s.60CC(5) of the Act, the Court is not required to have regard to any or all of the matters set out in sub-section (2) or (3), when the Court is considering whether to make an order with the consent of all of the parties to the proceedings.
Time to spend
The making of an order for equal shared parental responsibility is, however, not of itself determinative of the amount of time that a child is to spend with his/her parents, but goes to the parent’s decision making responsibilities. It does, however, trigger the operation of s.65DAA (1) of the Act.
If the presumption is applied, certain matters follow by virtue of s.65DAA of the Act and the Court must positively consider whether orders should be made which result in the child concerned spending either “equal time” or “substantial and significant time” or some other time with both his/her parents.
Substantial and significant time is defined in s.65DAA(3) of the Act as:
(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.
To determine what time orders should be made, the Court must look to the best interests of the child and whether the actual spending of such time is reasonably practicable.
Primary considerations
In order to determine the child’s best interests, the Court must have regard to the “primary considerations” under s.60CC(2) which are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
The father submitted, and the Court accepts, that there appears to be no issue that it is to the benefit of each of the children to have a meaningful relationship with each of the parents, the issue being how this is best to be achieved.
The father submits that his proposal is the one which best ensures such benefit to each of the children, providing them with the substantive and continual involvement of each of the parents in their day to day lives. By contrast, he submits the mother’s proposal does not afford the children the same level of time nor the opportunity to maintain and develop their relationship with him. The Court, however, does not accept that if the children were to continue to live with the mother on anything other than an equal time regime, that this would not afford the father the opportunity to maintain and develop his meaningful relationship with the children.
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The father submitted that this consideration does not now arise as the parties are residing in separate premises, there is an AVO in place and it is agreed between the parties that there have been no further incidences of violence since the making of that order on 16 May 2008. It is agreed between the parties that the children did not see (as distinct from hear) the incident of domestic violence between them which led to the making of that order. In addition, the father has undertaken and completed an anger management course since the date of the AVO and has also recently undertaken a course as recommended by the Family Consultant through “First Light Care”, a professional counselling service for the Australian Chinese community. The mother, however, submits that the children are fearful of the father and, at this interim hearing stage, the Court gives that submission weight, pending further investigation of the factual matrix behind that submission.
Additional considerations
The Court must have regard to each of the ‘additional considerations’ under s.60CC(3) of the Act separately, which are set out below:
(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 views;
In R & R: Children’s Wishes (2000) FLC 93-000, the Full Court of the Family Court of Australia said:
There are many factors that may go to the weight that should be given to the wishes of the children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive syntheses on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests.
The father submitted that while it is to be expected that there is limited information available as to the children’s views in an interim proceeding, the children have indicated on each occasion they have stayed with him their desire to extend the period of time in his care or at least stay with him on an overnight basis. In contrast, while the mother does not provide any evidence which would indicate the children have expressed any concern or did not wish to spend such time with the father, she asserted that the children were in some way fearful of him and that this fear impacted on the true expression of their views.
The Court finds that it can give little weight to this expression of the children’s views, which will need to await clarification by way of family report and/or Independent Children’s Lawyer’s assistance.
(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 father submitted that there appeared to be no issue that the children have a good and loving relationship with each of their parents.
The paternal grandmother also appears to have a particularly close relationship with the children, due to her significant involvement in their day to day care, both during the marriage and since the date of separation.
The relationship between the children and the maternal grandparents would need to be further investigated, given that they appear to be in Australia temporarily, while visiting from China.
The mother’s evidence was that the children rely on her for emotional security, particularly [X], who she says is quite introverted. The mother further says that the father has placed undue emphasis on the children’s academic performance, at the expense of their physical and social activities and pursuits. Nevertheless, she concedes that the children have a close and loving relationship with the father.
The Court finds that the children have a good relationship with both of their parents and there is nothing before the Court to evidence that the children do not have such a relationship with each parent’s extended family.
(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;
The mother says that she seeks that the children have a close relationship with both parents.
The father submitted that there was some reason for concern in the alleged actions of the mother following separation whereby, he says, she declined on a number of occasions to allow the children to spend significant time with him.
The father says that the mother has been motivated by financial reasons such as the loss of her Social Security benefits and/or Child Support payments, if she allowed the children to spend additional time with him. This is disputed by the mother.
The father also submitted that the mother was reluctant to allow the father’s mother to collect the children of an afternoon and return them to the father’s home. This is despite the fact, he says, that when the mother had not been available to assist in the care of the children, the father’s mother had taken on that role at the request of the mother, herself.
The mother did not submit that the father had failed to facilitate and encourage the children having a close and loving relationship with her.
Both parties have asserted that they have reasonable levels of communication and have been able to maintain an appropriate relationship between them for the benefit of the children. The Family Consultant records in the Child Dispute Conference memorandum that the number of arguments between the parents appears to have been reduced since separation. Both parents agreed that the children love them and want to spend time with each parent.
(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;
While the father submitted that the arrangement proposed by him was unlikely to have any emotional impact upon the children in light of their respective ages and his significant involvement in their lives prior to his departure from the former matrimonial home at the end of February 2009, there is no family report to provide the Court with appropriate recommendations, particularly given the mother’s allegation that the children are fearful of the father.
The Court accepts the father’s submission that any extended period of separation from him and/or his mother may potentially have a negative impact on the children.
The Court does not accept that this potential impact upon the children is likely to be minimised, however, only, by the establishment of a parenting arrangement that provides the children with equal time with each of their parents, at this interim stage.
(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;
The father submitted, and the Court accepts, that this factor does not arise for consideration.
(f) the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
The father submitted, and the Court accepts, that there is no issue in these proceedings that each of the parties does not have the capacity to care for the children. They have each done so, in conjunction and apart from one another, prior to and following their separation.
The Court accepts that the parties’ relationship since separation has been largely co-operative and cordial. The parties have continued to co-parent the children since the date upon which the husband vacated the former matrimonial home.
(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.
The father submitted that it is his desire for the children to continue to be closely connected to the Chinese culture. They speak Mandarin in both households. They also learn about the Chinese culture when in the father’s household from their grandmother. The Court is of the view that this time needs to be protected.
The children are progressing well at school and are achieving academic results to a high standard. The father has fostered and assisted the children in their academic achievements. It should be noted that the father has been able to assist the children when they have been at the mother’s home, including setting up their computers there. The Court gives this some weight in its consideration.
The mother gives evidence, in particular, in relation to the personal development of [X]. The grandmother has also given evidence, on behalf of the father, that she in fact assisted [X] when she recently started menstruating and that [X] has a very close relationship with her which enabled her to speak to her about those matters. Notwithstanding this, the Court is concerned that the practical living arrangements in the father’s household will potentially not meet the children’s (and in particular [X]’s) needs and the Court gives this factor substantial weight.
(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;
These factors do not apply to these children.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The father submitted that the mother’s attitude towards the role of the father in the children’s lives and her alleged attempt to limit his role since the day he vacated the former matrimonial home is of some concern. The Court has given this submission some weight.
The mother submitted that her desire was to achieve stability for the children, which she says would not at this time be advanced by the father’s proposal for equal time. The father submits that the mother has asserted that the father’s proposal is an attempt to “push her out of the children’s lives”. There is no evidence to support such a proposition.
(j) any family violence involving the child or a member of the child's family;
(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;
The mother’s evidence was that the father had been violent. There is no evidence that the mother had been violent. The Court gives this consideration substantial weight in its assessment.
The father submitted that an AVO is in place and it is common ground that there have been no further incidences between the parties since the date of that Order. In addition, the father has attended an anger management course on a voluntary basis since separation.
The mother says that whilst the children did not see the incident the basis of the AVO, they heard matters and are, to some extent, fearful of the father. This needs to be assessed further if their views are to be given any weight. This disputed issue cannot be resolved on the evidence before the Court at this time.
(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
As this is an interim hearing, this factor must be assessed in that light.
(m) any other fact or circumstance that the court thinks is relevant
The mother submitted that the father had not assisted her to meet the mortgage on the former matrimonial home, notwithstanding she says, that an extra $80,000.00 was borrowed, secured under that mortgage and used by him to travel overseas and to furnish his current residence.
The Court accepts that there are no other matters which arise for consideration at this time.
Matters in s.60CC(4) and (4A)
The Court must, without limiting its consideration of the factors in s.60CC(3)(c) and (i) of the Act, 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 the case where the child’s parents have separated, having regard to the events and circumstances since separation). The Court is not of the view that, apart from the matters set out above, there are any further issues which impact on the Court’s consideration of the issues before it.
Reasonable practicability of ‘spending time’
The Court in determining the reasonable practicability of the children spending time with the parents pursuant to s.65DAA(1) of the Act, must have regard to the following matters set out in s.65DAA(5) of the Act:
(a) how far apart the parents live from each other; and
The Court finds that the parties live in close proximity to each other.
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
The Court is concerned to ensure that the issues giving rise to the AVO do not further impact on the father’s future capacity.
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
The Court is satisfied on the material before it that the parties have the relevant capacity to so communicate and resolve disputes.
(d) the impact that an arrangement of that kind would have on the child; and
The mother’s evidence was that the father’s physical accommodation did not lend itself to support his proposal. The mother says the children would be sleeping in a two bedroom unit, sharing a bedroom (in bunk beds) with their elderly grandmother (who, it is asserted by the mother, is 71 years of age, is blind in one eye and has a number of health issues), where the children are of opposite sex and one child has reached puberty and commenced her menstrual cycle.
The mother’s evidence was that the father works full time and that she is, otherwise, available to care for the children upon their return from school each day. The father not returning from work until about 6:00pm. The Court gives this weight.
Neither parent’s proposal, however, will impact on the children’s current schooling arrangements.
(e) such other matters as the Court considers relevant
There do not appear to be any other matters.
Conclusion
Finally, the Court must have regard to all the matters set out in s.60CC of the Act, to consider how, together, they should give effect to either or both of the primary considerations in determining the children’s best interests.
The Court accepts the evidence of the father that he can only make himself available to care for the children during such periods as the children spend time with him, with the direct assistance of the paternal grandmother, given his work commitments. Notwithstanding the father’s assertion to the contrary, the Court cannot on the evidence before it assess the quality of the paternal grandmother’s assistance to determine whether there is in fact an advantage or disadvantage for the children. On the mother’s evidence as to her working hours, she does not generally require the assistance of her parents, although they have been of some assistance while they have been visiting from China. The Court notes the father’s submission that at least from 2010, if [X] commences at [F] High then, he will be available to travel with her to and from school during those periods she is in his care.
The Court has considered and given weight to the mother’s historical role as primary care-giver.
The Court is of the view that the children’s stability should be protected. The father vacated the former matrimonial home to ensure the children retained that stability. His decision to do so, is not the subject of criticism and nor should it be determinative of parenting orders, even on an interim basis. The father removed himself in circumstances where allegations of violence had been made together with the making of a final AVO. However, this decision was reflective of ensuring the children’s stability was maintained. The children could return each night to their own beds without further upheaval, notwithstanding that any separation should be recognised as a momentous upheaval in their lives.
The father’s, acknowledged by him, limited accommodation, whereby he proposes the two children sleep with the paternal grandmother (given the children’s ages and the daughter reaching puberty), would cause further change and a potential for some destabilisation and upset for the children. The Court does not accept that the father’s proposal affords [X] the appropriate privacy as contended by him.
The mother’s parents are visiting from China and whilst staying in Australia reside with her at the former matrimonial home. This means that they occupy one bedroom, the mother and the daughter occupying the other bedroom and the male child has his own bedroom. This would appear to be a temporary arrangement, pending the maternal grandparent’s returning to China.
The father argues that the mother’s agreement on a final basis to half school holidays would impose a similar concern for the children living with him at that time. The mother says, however, that she anticipated that the father would take the children away on holidays and that they would not be spending lengthy periods sharing accommodation with his mother. This is supported by what, in fact, the father did with the children when he took them to the snow and to Canberra in the recent July school holidays.
The father wishes to be involved in the children’s lives and in particular in their schooling. While the mother has expressed some criticism of the father’s concentration on academic over other pursuits, there is no evidence as to how this impacts on the best interests of the children, even if it was found to be true. The father says that he has engaged with the children in other pursuits, including sporting ones. This may be a product of the parties’ separation and his need to interact with the children with respect to these matters into the future.
The Court is of the view that, at this interim stage, the father’s time should be increased beyond that proposed by the mother, but less than that proposed by him. The Court proposes that the children live with the mother, but spend time with the father in week one from after school Thursday to before school Monday. That will provide the father and the children with four overnights. The following week, the father should be afforded one overnight on a weekday to be agreed between the parties, but failing agreement, on Wednesday night.
The Court’s proposal will allow for the stability for the children in the mother’s primary care to be continued, given her reduced work time commitments, which on both parties’ evidence are less than the father’s working hours. While the father disputed the mother’s working hours in submissions, this was not done on his own affidavit material but by reference to the maternal grandmother’s observations, limited to a one month period. On the state of the evidence, the Court is of the view that it is more likely that on an interim basis, the mother’s working position, given her employment as a tax advisor, with increased work commitments at financial year end (bearing in mind it was submitted she was not currently working at all) is likely to provide more available parental time with the children during the day than would be permitted to the father, who is in full time employment and who would need to rely on the paternal grandmother for assistance.
The Court is of the view that any increase in time with the father needs to be on a graduated basis and the Court would be assisted by the provision of a Family Report as to how the children will cope and benefit by such increases in time.
The Court is satisfied, on balance, that its proposed orders are in the children’s best interests and accordingly, will so order.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Kemp FM
Deputy Associate: Caroline Nolan
Date: 18 September 2009
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