MENUHIN & MENUHIN - [2020] FamCA 349

FAMILY COURT OF AUSTRALIA

MENUHIN & MENUHIN

[2020] FamCA 349

FAMILY LAW – CHILDREN – best interests of the child – spend time arrangements – where husband seeks to increase overnight time with children to four nights per fortnight – where wife says overnight time with the husband should be three nights per fortnight – where wife seeks for the older child to have counselling with a psychologist – where Family Report supports increase of overnight time with the husband to four nights per fortnight to foster meaningful relationship between the children and their husband and does not recommend psychological intervention for the older child – orders made for overnight time with the husband immediately to increase to three days a fortnight, moving to four days a fortnight after six weeks.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Menuhin

RESPONDENT:

Ms Menuhin

FILE NUMBER:

MLC

6298

2018

DATE DELIVERED:

5 May 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

McEvoy J

HEARING DATE:

5 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Delidis

SOLICITOR FOR THE APPLICANT:

Mills Oakley Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Werner

SOLICITOR FOR THE RESPONDENT:

Meerkin & Apel Lawyers

Orders

That order 2 of the orders dated 9 October 2018 be discharged.
That the children Y born … 2015 and X born … 2017 (collectively known as “the children”) spend time and communicate with the husband in a two (2) week cycle as follows:
(a)    in week 1 (commencing on 4 May 2020):
(i)on Tuesday from 8.45 am to 12.30 pm; and
(ii)on Friday from 3.30 pm through until Monday at 7.30 am;
(b)    in week 2 (commencing on 11 May 2020):
(i)on Tuesday from 8.45 am to 12.30 pm; and
(ii)on Thursday from 2.30 pm to 6.30 pm;
(c)    in week 2 (commencing on 15 June 2020):
(i)on Tuesday from 8.45 am overnight until 7.30 am Wednesday; and
(ii)on Thursday from 2.30 pm to 6.30 pm.
That the wife’s Further Amended Response filed 1 May 2020 be dismissed.
That the husband’s Amended Application in a Case filed 30 April 2020 be otherwise dismissed.
The parties to bear their own costs of these applications.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Menuhin & Menuhin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6298 of 2018

MR MENUHIN

Applicant

And

MS MENUHIN

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Before the Court is the husband’s Amended Application in a Case dated 30 April 2020. The husband’s application raises questions in relation to the time the children should have with the husband, and whether the older child should have counselling with a psychologist. The first issue is whether the children's time with the husband should extend to four nights per fortnight as recommended by Mr B, or whether it should extend only to three nights and only after a graduated delay. The second issue is whether the children should continue to be cared for by their father for four hours per week whilst their mother is at work as has been the case since October 2018, or whether they should be cared for by third parties.
In this matter the Court has had the benefit of written submissions filed on 4 May 2020 by the husband, and written submissions filed on 5 May 2020 by the wife. There is an affidavit of the husband of 14 February 2020, and an affidavit of the wife of 28 April 2020, together with an affidavit of Mr B of 24 February 2020 which exhibits his report of 19 February 2020.
Implicit in Mr B's report is a view that the limited overnight time that the children are presently having with their father needs to be extended if there is to be created a more meaningful relationship with their father. It may be observed that it would appear to be the case that the older child has been having overnight time since November 2018 without incident. The wife’s position appears to be, and this has been enlarged by Mr Werner in oral submissions this morning, that the boys' time should be limited to three nights because three consecutive overnights would be too much for the younger boy, in particular, who has not had overnight time to date.
As the husband submits, Mr B makes no such distinction and holds no such concerns. The husband says that his proposal streamlines and consolidates the current regime and reduces the number of transitions from 14 to eight changeovers, which accords with Mr B's opinion. Mr B recommends a change from the current arrangement to an arrangement that is less fragmented, more continuous, and allows for greater longevity of time and care. He also stresses the importance of consolidating the boundary around the relationship between the wife and the husband.
As the husband also submits, Mr B has described the husband's parenting and skills, and the boys' capacity to cope, in terms that the husband's interaction with the children is extremely positive. It may be accepted that the husband’s proposal accords with Mr B's recommendation, which is that the children appear to be managing time with their father well and that this should be enhanced. The husband’s proposal is practicable having regard to the exigencies imposed by his professional obligations.
In all the circumstances, therefore, the children should spend four nights per fortnight with their father, albeit that, as the husband has conceded today, the fourth night of that arrangement, effectively the Tuesday night in week 2, would not commence until the week of 15 June 2020.
Insofar as the second aspect of the time arrangements is concerned, that is to say whether the children should continue to be cared for by their father for four hours effectively in week 2, an arrangement of that kind seems appropriate. Such an arrangement has apparently been in place since October 2018, and is desirable in all the circumstances, not least because it would reduce the period of seven days in which the children would not otherwise see their father where for the last year and a half they have seen him every other day. It also coincides with the wife’s working hours on Tuesdays and Thursdays, when the children would otherwise be cared for by someone else, whether that be a babysitter or the wife’s mother, and it permits the husband to be involved with the older child's kindergarten.
Having regard to my conclusion that an arrangement for the children’s time with the husband in the terms that I have outlined would be in the best interests of these children having regard to the terms of Part VII of the Act, there will be the following orders.
ORDERS DELIVERED
Turning then to the final issue, namely, whether the parties' older child should see a child psychologist, as the husband submits Mr B has not recommended psychological intervention in this manner and, indeed, the wife has not raised this concern with Mr B.
The fact that Mr B did not assess the child as requiring counselling or in need of any other intervention, and that the same position seems to be adopted by Ms C, the child's child care provider, is also significant. Ms C appears to be of the view that the child is coping well and that there are no concerns, that the child is settled at child care, that he is happy to come to child care, that he has not been experiencing difficulties with transitions in recent times, that his behaviour is positive, and that he is well connected to his peers. It seems that Ms C describes significant progress in the child's development and says that she has no concerns regarding his behaviour.
Also relevant are the notes of the independent psychologist who effects changeovers, Mr D, that there are no particular issues arising in the changeovers, and that he observes a well‑adjusted child who transitions happily between households. In these circumstances the submission of the wife that there is an evidential basis for an order of the kind she seeks be made that the older child see a child psychologist should be rejected.
Accordingly, the Further Amended Response of the wife filed on 1 May 2020 will be dismissed, and the husband’s Amended Application in a Case filed 30 April 2020 will otherwise be dismissed.
Insofar as the husband makes an application for costs in relation to this matter, in all the circumstances there is not a proper basis for the award of costs. The parties can bear their own costs in relation to this aspect of the proceedings.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McEvoy delivered on 5 May 2020.

Associate:

Date: 8 July 2020