Marion and Marion

[2013] FCCA 98

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARION & MARION [2013] FCCA 98

Catchwords:
FAMILY LAW – Parenting and property proceedings – limited issue parenting matters remaining outstanding – sole parenting responsibility sought – finding that best interests of the children are promoted by equal shared parental responsibility – time spent with to be equal.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 60CA, 60CC, 61DA(2)(b)

Applicant: MS MARION

Respondent: MR MARION

File Number: MLC 3704 of 2012

Judgment of: Judge Hartnett

Hearing date: 20, 21 and 22 November 2012

Date of Last Submission: 17 December 2012

Delivered at: Melbourne

Parenting Orders made: 24 December 2012

Delivered on: 8 May 2013

REPRESENTATION

Counsel for the Applicant: Ms Tulloch

Solicitors for the Applicant: J A Middlemis

Counsel for the Respondent: Mr Glover

Solicitors for the Respondent: Robertson Hyetts

THE COURT ORDERS THAT:

1. The husband and the wife have equal shared parental responsibility of the children [V] born [in] 1998, [W] born [in] 1999, [X] born [in] 2001, [Y] born [in] 2004 and [Z] born [in] 2009 (“the children”).

2. The children live with:

   (a)the wife from 3:30pm Friday, commencing 21 December 2012, until the following Friday at 3:30pm and each alternate week thereafter; and

   (b)the husband from 3:30pm Friday, commencing 28 December 2012, until the following Friday at 3:30pm and each alternate week thereafter.

THE COURT ORDERS BY CONSENT THAT:

1. The children live with:

   (a)with the husband

   (i)     that in the event that the children are with the wife on:

   (i)     on Father’s Day, from 10.00am to 6.00pm Father’s Day;

   (ii)    on the husband’s birthday, from 10.00am to 6.00pm if a non-school day or 3.30pm to 7.00pm if a school day.

   (i)     from 4.00pm on Christmas Day to 3.30pm Boxing Day in 2012 and each alternate year thereafter;

   (ii)    from 3.30pm Christmas Eve to 4.00pm Christmas Day in 2013 and each alternate year thereafter;

   (iii)     for 2 hours if a school day or 4 hours if a non-school day on each of the children’s birthdays.

   (iv)   from 3.30pm to 7.00pm on Monday 24 December 2012 and each alternate week thereafter, save if more convenient to the wife’s work roster this day can be another being Tuesday or Wednesday as nominated by the Wife;

   (v)    such further or other times as the parties agree in writing.

   (b)with the wife:

   (i)that in the event that the children are with the husband:

   (i)     on Mother’s Day, from 10.00am to 6.00pm Mother’s Day

   (ii)    on the wife’s birthday from 10.00am to 6.00pm if a non-school day or 3.30pm to 7.00pm if a school day

   (iii)     from 3.30pm Christmas Eve to 4.00pm Christmas Day in 2012 and each alternate year thereafter;

   (iv)   from 4.00pm Christmas Day to 3.30pm Boxing Day in 2013 and each alternate year thereafter;

   (v)    for 2 hours if a school day or 4 hours if a non-school day on each of the children’s birthdays;

   (vi)   from 3.30pm to 7.00pm on Monday 31 December 2012 and each alternate week thereafter save if more convenient to the wife’s work roster this day can be another being Tuesday or Wednesday as nominated by the wife;

   (vii)   such further or other times as the parties agree in writing.

2. The wife have liberty to give 14 days notice in advance to the husband of the day or days that she would be available to care for [Z] whilst he is not at kindergarten and the husband is not available to personally care for [Z] during school hours AND in such case, the wife spend time with [Z] from 9.00am to 3.30pm on such nominated day or days.

3. In the event that either the husband or the wife is not able to care for the children for more than 2 consecutive days, the other party be given the first option to care for the children during such time.

4. Neither party change the current school of each of the children without the prior written agreement of the other parent.

5. Changeovers which do not coincide with the start or finish of school take place with the parent or their nominee who has the children to deliver them to the other parent’s home, the delivering party to remain outside the front gate of the said home.

6. The husband and wife shall permit the children to email or telephone their parent with whom the children are not then living with should they desire to do so at any time.

7. The husband and wife shall permit the children to telephone the other parent at such times as they may reasonably request.

8. The parties shall immediately inform the other of any serious illness or injury sustained by the children whilst in their care and further provide any particulars of any treatment received by the children together with the name and address of the treatment provider and/or location at which the children are patients.

9. The parties shall each make available to the other any medication prescribed for the children to enable the other party to administer such medication to the children and the other party shall thereafter administer the medication as prescribed or required and the medication shall pass between the parties so as to ensure that it is in the possession of the party with whom the child is living or spending time.

10. Each party shall notify the other with no less than 7 days prior written notice and particulars of any change of residential address, telephone number, email address or other contact details.

11. The parties provide a copy of these orders to any school which the children may from time-to-time attend.

12. Each party do all such acts and things and sign all such documents that may be necessary to request and authorise any kindergarten or school at which the children attend from time-to-time to provide copies of all reports, notices, information, newsletters, photographs, invitations for parent-teacher interviews and other information relating to the children’s education to both parents at the expense of the husband and wife, if any.

13. The husband and wife both be permitted to attend all school activities including school concerts, school plays, excursions, parent-teacher interviews and the like, normally attended by parents.

14. Each party give all necessary consents and authorities that may be necessary to enable the other party to obtain information concerning the children’s education, health care and extracurricular activities.

15. Neither party by themselves their servants and/or agents denigrate the other or allow any other persons to do so in the presence and/or hearing of the children or any of them.

16. The parties attend a mediation process agreed between the parties and in default of agreement the parties’ solicitors shall jointly appoint a mediator for the parties to discuss issues of schooling, extracurricular activities and other general matters pertaining to the children.  The funding of such mediation shall be equal.

17. Unless otherwise agreed in writing between the parties, the child [X]’s enrolment at the [omitted] College continue.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 3704 of 2012

MS MARION

Applicant

And

MR MARION

Respondent

REASONS FOR JUDGMENT

1. These proceedings involved orders sought by each of the parties for property division and parenting orders. After commencing the proceedings in Court on hearing days of 20, 21 and 22 November 2012, the property and certain aspects of the parenting matters were resolved between the parties and reduced to Consent Orders made 22 November 2012 (as to property) and 24 December 2012 (as to some but not the totality of the parenting orders).

2. The Court made the remaining parenting orders, not by consent, also on 24 December 2012. The Orders pronounced that day as a consequence of judicial determination were as follows:-

   “1. The husband and the wife have equal shared parental responsibility of the children [V] born [in] 1998, [W] born [in] 1999, [X] born [in] 2001, [Y] born [in] 2004 and [Z] born [in] 2009 (“the children”).

   2. The children live with:

   (a) the wife from 3:30pm Friday, commencing 21 December 2012, until the following Friday at 3:30pm and each alternate week thereafter; and

   (b) the husband from 3:30pm Friday, commencing 28 December 2012, until the following Friday at 3:30pm and each alternate week thereafter.”

3. Reasons for judgment in respect of the Orders made by the Court on 24 December 2012 follow herein.

4. The wife sought sole parental responsibility of the parties’ five children. The husband sought an order between the parties for equal shared parental responsibility of the children. The Court acceded to the application of the husband. The wife further sought that the children of the marriage live with her and spend four nights out of fourteen with the husband, save for the school holidays when the children would spend equal time with their parents.  The husband sought that the children spend effectively week about with each of their parents. The Court acceded to the application of the husband.

5. The children are:-

   a)[V] born [in] 1998 now aged 15 years;

   b)[W] born [in] 1999 now aged 13 years;

   c)[X] born [in] 2001 now aged 12 years;

   d)[Y] born [in] 2004 now aged 8 years; and

   e)[Z] born [in] 2009 now aged 4 years.

6. The wife relied upon Affidavits sworn by her and filed on 27 April 2012, 5 May 2012, 27 July 2012 and 9 November 2012. She also filed a Financial Statement on 27 April 2012 upon which she relied. Further, the wife relied upon an Affidavit sworn on 19 November 2012 by

   
   

   Ms H annexing a transcript of the proceedings in the Magistrates Court of Victoria at [omitted] of 26 October 2012, and being in relation to an Intervention Order of 12 months duration obtained by the wife.

7. The husband relied upon Affidavits sworn by him on 27 June 2012, 26 July 2012 and 16 November 2012; an Affidavit sworn by his mother, Mrs M on 16 November 2012; an Affidavit sworn by Mr H on 27 July 2012; an Affidavit sworn by Mr C on 26 July 2012; and an Affidavit sworn by Mr N on 26 July 2012. He also filed a Financial Statement sworn on 27 June 2012 upon which he relied.

Background

1. The parties commenced their cohabitation in March 1997 and married in [omitted] on [date omitted] 1997. They separated after some 15 years of cohabitation in February 2012, and when their youngest child [Z] was just three years of age. Their other remaining four children were all school aged. At separation, the children remained residing in the former matrimonial home with the husband. The wife on leaving the former matrimonial home had taken up residence in accommodation which could not house the children. She was at the time financially impecunious, but she had not wished to remain in occupation of the former matrimonial home which the husband initially made available to her. She nevertheless anticipated that she would see the children as much as she had prior to her departure from the home. This did not occur by agreement between the parties for reasons of the husband’s obstruction and the wife’s response to the children, which was to focus less on them at that time. There was also the practical difficulty that she was not living with them.  The first approximately six months of 2012 was a period of recent separation, and grief and depression for both parties. The husband was having difficulty accepting the marriage had ended and the wife was seeking a degree of freedom in her personal life that created difficulty for the husband and children.

2. In May 2012 and consequent upon an episode of violence between the parties, both parties applied for, and obtained, Intervention Orders against the other which were resolved in July 2012 on the basis of each providing an Undertaking to the Court with a denial of allegations and withdrawal of the proceedings. In August 2012, the wife reinstated her application with respect to the earlier episode and again obtained an ex parte Intervention Order which was ultimately contested by the husband in proceedings in the Magistrates Court of Victoria in [omitted] on 26 October 2012. In the course of those proceedings, findings were made against the husband and a twelve month Intervention Order was made in favour of the wife. This parental conflict was post-separation. Neither party alleged family violence during the relationship. The State intervention order proceedings ran whilst there were pending proceedings in this Court in respect of parenting orders. In respect of those parenting orders, Interim Orders were made on 4 July 2012 and 30 July 2012. On 4 July 2012, the parties consented to an Interim Order that they retain equal shared parental responsibility for the long term care, welfare and development of the five children. Save for specified and limited (but overnight) time, the children continued to live with their father with the consent of the parties. However, the wife desired an increase of time between herself and the children and was seeking an equal shared care arrangement whilst the husband was seeking the children continued to live with him. The Orders of 4 July 2012 also provided for the parties to attend upon a family consultant for the purposes of a s.11F of the Family Law Act 1975 (Cth)(‘the Act’) child inclusive memorandum to the Court. The parties and their children attended upon Ms D whose memorandum is dated 20 July 2012. She recommended amongst other things that the children should remain living in their home with the father, but that they should be spending much more time with their mother and that [Z] should spend additional time during the day with his mother. When the parties returned to Court on 30 July 2012, the Court made orders putting into effect those recommendations with the children spending six nights out of fourteen with their mother, and with the wife spending each Thursday from 9.30am until 3.30pm with [Z], in addition to that other time spent with. The wife, however, has not availed herself of that additional Thursday time with [Z] on the basis that she is employed from 9:00am until 5:30pm, save for those Thursdays that she has taken the whole day off because of a doctors appointment. On those occasions, being at least three, she has not spent any part of the day with [Z] although clearly could have.

Consideration

1. The wife’s hours of employment as a [occupation omitted] with her employer [omitted] are:-

   a)every second Sunday from 10:00am to 4:00pm;

   b)every Monday from 9:00am to 5:30pm;

   c)every Thursday from 9:00am to 5:30pm; and

   d)on a Tuesday or a Wednesday in each week on a rostered basis, and from 9:00am to 5:30pm.

   The wife is contracted to work a minimum of sixteen hours each week. The wife’s availability to care for her children, unimpeded by work commitments is from Thursday at approximately 6:00pm each week until Sunday at 10:00am in one week and until 8:30am Monday in the next, and alternating. The wife needs to be employed to make better financial provision for herself and the children.

2. The husband’s working hours are from 10:30am to 2:30pm and 5:00pm to 9:30pm each Tuesday to Sunday in his employment as a [omitted]. He likewise needs to be gainfully employed to make proper provision for himself and the parties’ children.  The parties’ eldest son [V] also works in [omitted] three days a week, and outside his school hours, anywhere between 5:00pm and 10:00pm, a regime supported by both his parents. He works with his father. The wife described [V] as liking to spend time with his father. She said with respect to [V]’s response to his father – “he respects him. He looks up to him”.

3. The wife gave evidence at trial that the then current Orders of 30 July 2012 worked quite well for the children and that all of the children, in the preceding three to four weeks, were “a lot more relaxed and happy”. She noted that prior to that [W] had not been coping, being confused and upset as he loved both his parents and did not wish to hear either being denigrated by the other and, in particular, the wife being denigrated in the husband’s household. That it seemed, had abated, as had the conflict and stress associated with the marital separation. The wife’s evidence was further that all five children were less stressed, happy children. The wife described the husband as a “fantastic father” whom the children loved but stated her belief that she was a lot more connected to the children emotionally and thus sought to be primarily responsible for them.

4. When asked about the children’s wishes, the wife’s evidence was that [V] loves them both and “loves spending as much time with his father as he does with me”. Further, her evidence was that [W] loved her, was concerned about his father, and it was her belief he wanted to live primarily with the husband; and [X] loved her father and her mother and said she wanted to spend more time with the wife. Although [V] was almost 15 years old at the time of the making of the Orders in December 2012, [W] 13 years old and [X] 11 years old, the wife’s evidence was that [W] and [X]’s wishes should not be considered by the Court because they did not understand the advantages to them of having the stability of being in one home and having a set routine. The wife accepted [V] had sufficient maturity to express his wishes which were to spend equal time with each of his parents. She also anticipated that [V] would live wherever he chose regardless of any order made by the Court, and stated that [W] would not be happy to spend the time as proposed by her with her, being a considerable reduction in time spent with his father. 

5. The husband’s evidence as to the children’s expression of their wishes did not differ markedly from that of the wife. His evidence was that all of the children loved their mother and would be satisfied with an equal time spent with regime; that [Z] in particular missed his mother who had not made herself as available to care for him as she could have; and that within an equal time spent with arrangement he would continue to be heavily involved in [V] and [W]’s [sport omitted], taking them to various training nights and scheduled matches. The wife had no difficulty with that, her evidence being that [sport omitted] was an activity “their father has always done with them”. [X] is involved in [sport omitted] and both her parent’s have a role in that activity. Neither party sought that any of the children be separated. This meant that a consideration of the elder children’s wishes was important. Their maturity, especially that of [V] and [W], required the Court to give the expression of those wishes some not insubstantial weight. In accordance with s.60CC(3)(a) of the Act, the views expressed by the children to Ms D and to each of their parents have been considered. In particular, the views expressed by the children post the making of the July 2012 Orders to their parents and grandmother are taken into consideration. In essence, the children love their parents, want their parents to get on with each other, and they want to spend time with them both fairly equally without that being based on a feeling of necessary alignment with either party which may have been the case in the period of some months following the separation.

6. Whilst the husband was away in Queensland in November 2012 for a period of nine days, the children resided with their paternal grandparents and spent some time with their mother. [V] and [W] had a physical fight whilst in the wife’s care with [W] grabbing a knife from the wife’s house and threatening [V] with it. The wife’s response was immediate, appropriate and protective of all the children and had the effect of calming [W] down. This incident occurred some three to four weeks before the trial. The wife’s evidence at trial was that since that time [W]’s behaviour had been relaxed and the relationship between [W] and herself good.

1. Mrs M is the paternal grandmother. She has been, and continues to be, a reliable and ever-present grandmother enormously engaged in the care and well-being of the five children.  She is respected by both the husband and wife for that. She knows the children well and both she and her husband care for them whether requested to do so by either the husband or wife. Although she is very involved in the husband’s care of the children and in particular during his absences at work, the wife in the proceedings thought she would be able in the future to continue to seek assistance from the paternal grandmother should she need support in caring for the children. The wife’s evidence as to the paternal grandmother was that she was “a really beautiful grandmother, and there is no way in hell I would take my children away from her. They’re very lucky to have each other.” Mrs M’s evidence as to the husband’s dedicated care of and commitment to the children, I accept. Further, her evidence as to the husband’s willingness to assist the wife in her care of the children, I also accept. Mrs M was critical of the wife and her Facebook exploits which were available for the children to see for a time, which she felt detrimental to the children’s well-being. She was also critical of the wife’s behaviour post-separation and her lack of care, as it appeared to her, for, and of, the children. She also gave evidence, which I accept, that the wife would leave the children unattended at times whilst the parties were together and did not appear to cope with their care, although she also acknowledged the parties were under a lot of pressure in their workplace and home. But she said in her evidence that she loved the wife and would do anything to support the children no matter whose care they were in. She recognised that her feelings of anger toward the wife were not helpful for the family as a whole and had been attending counselling to help her understand why she felt that way and to overcome such feelings. She remains a constant support for the family grouping.

2. Both parents agreed that the children should have available to them the school counsellors to assist them during their parents’ separation, and [W] has attended such counselling weekly. This joint decision of the parent’s was one made for the benefit of their son despite the conflictual nature of their relationship at the time. It was to their credit that they were able to see the needs of [W] and act to ensure such needs were met.

3. Both parents have the capacity to meet the children’s physical and emotional needs. The children share a good and loving relationship with each of their parents, and with their paternal grandparents. The elder boys’ wishes are to spend more time with their father or equal time between their parents and, as referred to previously, certainly [V]’s wishes are given some weight by the Court as is the expression of [W]’s wishes.

4. The husband’s proposals for equal time spent with ensures a continuation of the current arrangement, save for the children spending an extra night with the wife each fortnight. This is a care arrangement the wife concedes has benefited the children and made them happy. It is a care arrangement made possible by the parties close geographical proximity to each other.  Her proposal, to substantially reduce their time spent with their father, which will result in her increased dependence upon the paternal grandmother to assist her in the children’s care or other third parties currently not known to the children, represents a substantial change in the children’s circumstances and one which the evidence does not establish is in their best interests. Nor does the evidence establish the wife could manage such a preponderance of care without significant assistance from the husband, his parents or others.

5. The husband failed to act appropriately with respect to the responsibilities of parenthood in the instance where he perpetrated family violence upon the wife and in the presence of [W]. The wife failed to act appropriately with respect to the responsibilities of parenthood following separation in her, at times, lack of provision of care for the children and her prioritizing of other activities, for instance [omitted] and social outings at times, over spending time with and caring for the children. But overwhelmingly both parties have over the many years and at the time of the trial, acted in concert to promote their children’s best interests and to care for them in a protective and loving way. An over emphasis on the parties’ failings between separation and 30 July 2012 whilst not understating the severity of the family violence or the distress it caused the wife, would not properly advance the children’s best interests, nor give necessary credit to the parties for being good and loving parents who can and do promote their children’s best interests.

6. Section 60CA of the Act provides that a child’s best interests are the paramount consideration. The Court has considered those matters relevantly set out in s.60CC of the Act that it is required to consider as referred to in these reasons and that go to a determination of “best interests”. It is highly beneficial for the children to have a meaningful relationship with both their parents. There is on the evidence no present or likely need to protect the children from physical or psychological harm, from being subjected to or exposed to, abuse, neglect or family violence. The husband has complied with the terms of the current Intervention Order and has attended a post-separation parenting course which has given him some new insights. He is criticized for not communicating effectively with the wife in support of her application for a sole parenting responsibility order. He has been wary of doing so though because of the existence of the Intervention Order. The wife has failed to approach him as to issues she sees looming, such as [X]’s future schooling arrangements. On the totality of the evidence however, I find the parties are able to communicate about their children because they both love them, acknowledge the importance of the other in the lives of their children and want what is best for them. In a shared care arrangement they can support each other and the children when in the others household. Whilst the presumption of equal shared parental responsibility does not apply by virtue of s.61DA(2)(b) of the Act, on all the evidence it is a parenting order that best promotes all the children’s best interests. The wife’s objection to such an order came after her initial proposal of such an order. The wife’s evidence is that routine and stability for the children are best promoted by her having the benefit of the orders she sought despite that never having been the children’s experience. She also did not concede that those factors (of routine and stability) were so beneficial to the children that if the Court determined the children should reside more so with the husband, it should be in the rotation proposed by her. Nor did she establish that the parties are so hostile to each other that they cannot communicate for their children’s sake. They each, without hesitation, acknowledged their children loved them both borne out of years of dedicated care. They now need to put in place a structure of communication and living arrangements with the certainty these Orders shall provide to them. Having observed them both in the witness box they are well capable of acting to promote jointly their children’s best interests.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  8 May 2013