MERRILL & MERRILL
[2012] FMCAfam 1435
•14 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MERRILL & MERRILL | [2012] FMCAfam 1435 |
| FAMILY LAW – Children – Parenting Orders – Interim Orders – parental responsibility – equal shared parental responsibility – best interests of the children – when the children are to spend time with the father – changeover arrangements – proposed holiday in the (country omitted) – where Family Report has been ordered – where Application listed for final hearing in July 2013 – substantial and significant time – whether reasonably practicable. EVIDENCE – Common knowledge – school term dates in public schools in New South Wales are matters of common knowledge in New South Wales. |
| Evidence Act 1995 (Cth), s.144 Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 61DB, 65DAA |
| Goode v Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 |
| Applicant: | MR MERRILL |
| Respondent: | MS MERRILL |
| File Number: | SYC 2786 of 2012 |
| Judgment of: | Scarlett FM |
| Hearing date: | 14 December 2012 |
| Date of Last Submission: | 14 December 2012 |
| Delivered at: | Sydney |
| Delivered on: | 14 December 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Hamish Cumming Family Lawyers |
| Counsel for the Respondent: | Mr Guterres |
| Solicitors for the Respondent: | Lees & Givney |
ORDERS
UNTIL FURTHER ORDER
The Applicant and the Respondent are to have equal shared parental responsibility for the children of the marriage:
(a)X born (omitted) 2000;
(b)Y born (omitted) 2003; and
(c)Z born (omitted) 2005.
Except as otherwise provided the children X, Y and Z are to live with the Respondent mother.
The children X, Y and Z are to spend time with the father:
(a)Each alternate weekend during the school term from 5:30 pm on Friday until 7:30 am on Monday morning PROVIDED THAT if the Monday is a public holiday then until 7:30 am on the following Tuesday; and
(b)During school holidays at such times as the parties shall agree.
The children are to remain in the care of the mother on Mother’s Day and spend time with the father on Father’s Day at such times as the parties shall agree.
For the purposes of changeover during the school term the father is to collect the children from the mother’s home on the Friday afternoon and return the children to the mother at her home or at before school care as the mother may advise on the Monday morning or the Tuesday morning as the case may be.
The father is permitted to remove the children from Australia for the purpose of a holiday in the (country omitted) between Wednesday 18 September and Monday 7 October 2013 and for this purpose must give to the mother notice of the proposed travel dates and provide a copy of the children’s travel itinerary including details of the children’s return flights by 31 March 2013.
IT IS NOTED that publication of this judgment under the pseudonym Merrill & Merrill is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2786 of 2012
| MR MERRILL |
Applicant
And
| MS MERRILL |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the father of three children, X, Y and Z, for interim parenting orders. The children live with their mother and spend time with their father on alternate weekends, from Friday afternoon until Monday morning.
The parties are in dispute about:
a)Changeovers as to when and where collection and drop-off the children occur;
b)The father wants the children to spend an additional night with him each fortnight; and
c)The father wants to take the children to the (country omitted) for three weeks for a holiday and to see his parents.
The mother wants the changeovers on a Friday afternoon and on the following Monday morning to be at the children’s school. She does not consent to any further period of overnight time with the father during the week.
As to travel, the mother does not disagree with the proposal to take the children to the (country omitted), but believes that three weeks is too long as it will take the children out of school.
The proceedings should be seen in the context of a final hearing taking place on 16 and 17 July 2013. A Family Report has been ordered.
It is relevant to note that the parties entered into consent orders on 6 August 2012 relating to travel to (country omitted) and (country omitted) with the children.
On the morning of the hearing, the parties entered into interim consent orders concerning spousal maintenance.
Background
The father was born in the (country omitted) on (omitted) 1963. He became an Australian citizen in 1995 but retains his citizenship of the (country omitted).
The mother is an Australian who was born on (omitted) 1968.
The parties were married on (omitted) 1994 in the (country omitted) but have lived in Australia since they were married.
There are three of the children of the marriage:
a)X, who was born on (omitted) 2000 and is now 12 years old;
b)Y, who was born on (omitted) 2003 and is now 9 years and 2 months old; and
c)Z, who was born on (omitted) 2007 and is now 7 years and 3 months old.
All three children live at home with their mother.
The mother is a (omitted) by profession but did not return to work after the parties’ daughter Y was born in (omitted) 2003. She deposes in her affidavit of 26 July 2012 that she has been the children’s primary carer.
The father is also a (omitted) by profession. He works in the city, in an office situated in the next block from this Court.
The parties separated on or shortly after 13 February 2011, when the father told the mother that he intended to leave the marriage. He moved out of the matrimonial home in (omitted) and now lives in (omitted), with a woman with whom he has now formed a relationship.
The mother deposes in her affidavit that she has suffered from stress, anxiety and depression since the end of her marriage, although she had not been in good emotional health since 2007.[1]
[1] Affidavit of Ms Merrill 26.7.2012 at paragraphs [81]-[82]
Evidence and Submissions
The father relies on his affidavit sworn on 10 December 2012.
In his affidavit, the father sets out his proposals to change the arrangements for him to spend time with the children during the school term. He currently has the care of the children from Friday evening to Monday morning each alternate weekend. He proposes an extra night each fortnight:
I wish also to have the children from between 5.00 pm and 5.30 pm on the Tuesday evening, on the week not following the weekend that the children are in my care, until 7.30 am on the Wednesday morning.[2]
[2] Affidavit of Mr Merrill 10.12.2012 at paragraph [22]
As to changeover arrangements, he proposes that he would leave work in the city about 5.00 pm on the Friday evening and pick the children from the mother’s residence in (omitted). He suggests that the mother should collect the children from him in the city on the Monday morning.
He deposes that the mother wants him to collect the children from school or after school care on the Friday afternoon and return the children to before school care on the Monday morning.
The father’s arguments against the mother’s proposal are:
a)He would have to leave work at about 2.45 pm on Friday to pick the children up from school at 3.10 pm;
b)The mother does not work and is available to care for the children until after school until 5.00 or 5.30 pm on Friday evenings;
c)The mother has a motor vehicle and would be able to come into the city to collect the children;
d)He delivers the children to before school care on a Monday morning at about 7.30 am and he then leaves the children’s belongings on the mother’s veranda;
e)The mother lives approximately a 10 minute walk from the children’s school; and
f)The mother does not work and is available to care for the children from 7.30 am until the start of school on Monday mornings.
As to his proposed visit to the (country omitted) with the children, the father deposes that he usually takes the children for a holiday in about September each year to visit their paternal grandparents, both of whom are now 80 years of age. He asked the mother about this proposed trip in November 2012, but she did not agree. He deposed that he intended to arrange this holiday to coincide with school holidays.
The mother relies on her affidavit of 26 July 2012. In that affidavit she sets out her reasons for her opposition to the father’s wish to have the children spend time with him for an extra night each fortnight, being the Tuesday of the off week.
The mother deposes that she had “reluctantly” agreed to a trial of a mid week overnight stay in March this year:
X did not want to go. It was too disruptive for the children and the trial did not work out.[3]
[3] Affidavit of Ms Merrill 26.7.2012 at [36]
The mother reiterated at paragraph [117] of her affidavit that the trial arrangement for the children to spend alternate Tuesday nights with their father “did not work out”.
Again, the mother deposes that they tried an arrangement whereby the children spent time with their father every second Thursday, with the father returning them to her home at 7.00 am on Friday. This was also unsuccessful:
The children were unhappy, especially X. After one or two occasions I emailed the Husband that the arrangement was not working.[4]
[4] Ibid at [118]
The mother describes X as needing ongoing counselling, as he has anger and other issues relating to his father. Specifically:
He does not want to spend school nights with his father at (omitted).[5]
[5] Ibid at [151]
At paragraph [120] of her affidavit the mother describes how the father drops the children off at her home between 7.00 and 7.30 am on a Monday morning. Whilst they are in their school uniforms and their lunches are made, there are other things that she has to do to get the children ready for school and she states that the arrangement is “very disruptive” for them.
The mother’s position about changeovers is set out in subparagraph [165] (e) of her affidavit:
I have consistently indicted to the husband that it was my preference that on the days he has the children that he picks them up from after school or puts them in after school care and returns them on Monday morning to school or before school care, rather than my home at 7.00 am. The husband insists that as I am not working I should be the party that takes the (children) to school. Therefore, at much inconvenience to not only myself but the children, he delivers the children to my home on a Monday morning between 7.00 and 7.30 am for me to get them ready to go to school and to supervise them until then.[6]
[6] Affidavit of Ms Merrill 26.7.2012 at [165]
For the father, Mr Cumming submitted that the timing of the father’s planned trip to the (country omitted) in September 2013 was a combination of cost of airfares and his wish to use frequent flyer points. Whilst the children would miss a few days of school, it would not be detrimental to them at this stage of their education. X will be in his first year of High School. The two younger children will still be in Primary school; Y will be in 4th class and Z will be in 2nd Class.
Mr Guterres of counsel who appeared for the mother submitted that it would be disruptive for the children to spend an extra night with their father during the week, especially as (omitted) will be in his first year at High School. It would be better to wait until the Family Report was prepared, which should be in the first half of 2013.
The law to be Applied
Section 60CA of the Family Law Act requires the Court, in deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration. A court determines what is in a child’s best interests by considering the matters set out in subsections 60CC(2) and (3) of the Act.
The primary considerations are set in s.60CC(2), being the benefit to the child of having a meaningful relationship with each parent and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations are set out in s.60CC(3), and they include a variety of matters in fourteen paragraphs, including any views expressed by the child, the nature of the child’s relationship with each parent and other persons including grandparents, the extent to which each parent has taken, or failed to take, the opportunity spend time or communicate with the child, the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either parent or other persons, and the practical difficulty and expense of a child spending time or communicating with a parent.
Subsection 61DA(1) requires the Court, when making a parenting order, to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child. The presumption does not apply in cases of abuse or family violence and may be rebutted by evidence that it would not be in the child’s best interests.
When the court is making interim orders, the presumption applies unless the court considers that it would not be appropriate in the circumstances (s.61DA(3).
If there is an interim parenting order in relation to a child, s.61DB requires the Court, when making a final parenting order, to disregard the allocation of parental responsibility made in the interim order.
If a parenting order provides for the child’s parents to have equal shared parental responsibility for the child, the court is required by section 65DAA to consider whether it is in the child’s best interests and reasonably practicable for the child to spend equal time with each parent. If the court decides that it is not, it must then consider whether it is in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent.
All of those matters in the above sections have been considered.
Conclusions
Both the Applicant and the Respondent, in their Application and Response, seek orders that the parties should have equal shared parental responsibility for the children. There are no family violence issues raised that would make and there is no evidence that would satisfy the Court that it would not be in the children’s best interests for their parents to have equal shared parental responsibility for them.
The parties are to have equal shared parental responsibility for the children.
Neither party seeks an order that the children should spend equal time with each parent. It would not be reasonably practicable in the circumstances, considering the matters in s.65DAA(5).
In determining the question of substantial and significant time with each parent, the question must be approached from the point of view that the best interests of the children should be regarded as the paramount consideration.
It is unlikely that the amount of time the children spend with their father at present entirely meets the definition of substantial and significant time set out in subsection 65DAA(3), although the father is seeking to increase the amount of time the children spend with him each fortnight.
The children spend time with their father on weekends and holidays and he is seeking to extend the time they spend with him by adding a night during the week in the off week of the fortnight.
The parties are at odds about this point, as they are on the other issues in dispute.
This is an interim hearing, and the limitations placed on the Court are well known. As was stated by the Full Court of the Family Court in Goode v Goode[7]:
…the procedure for making interim parenting orders will continue to be an abridged process, where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.[8]
[7] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
[8] (2006) 36 Fam LR 422 at 442 [68]
What this means is that the Court can only accept affidavit evidence at face value, as it has not been tested by cross-examination. The Court does not have the advantage of assessing the credibility of parties by listening to their evidence and observing them in the witness box.
The father, as I mentioned earlier, is seeking to increase the time the children spend with him each fortnight. The Court is bound by s.60CC to consider the benefit to the children of having a meaningful relationship with both of their parents. It is hard to criticise a father for wanting to spend time with his children, and more time than he currently enjoys. This is not a case where there are issues of violence or abuse of the children; there is no family violence order in force.
True it is that the mother claims in her affidavit that she finds the father “very controlling and bullying”[9], but this is a matter more suited to a final hearing and would hardly suggest any risk of harm to the children. The mother does not suggest that there is an issue of harm.
[9] Affidavit of Ms Merrill 26.7.2012 at [165]
The difficulty is that there is evidence from the mother that the idea of the children spending a Tuesday night or a Thursday night in the off week of the fortnight has been tried and has been found wanting. The mother is saying that it is too disruptive to the children, especially for X. There is much to be said for the submission by Mr Guterres that it would not be in X’s best interests for his routine to be disrupted in his first year of High School.
One obvious problem with an extra night with the father on a Tuesday or Thursday night is that it involves two more changeovers each fortnight, and the parties have shown that they have had difficulty with changeovers up to now. The controversy may be assisted by the Family Report or the parties may wish to consider a less disruptive program between now and the final hearing.
It would certainly do no harm to provide that if the children are to spend time with their father on a weekend that is followed by a public holiday on the Monday, they should stay with their father until the Tuesday morning. There is only one such day that does not fall in the school holidays before the final hearing, being the Queen’s Birthday holiday in June, so the impact of such a change will be minimal. I propose to order accordingly.
No specific submissions were made about Mother’s Day and Father’s Day, but these are both days that are usually of special significance to parents and are often of particular significance to children. I propose to order that, to avoid argument, the children are to remain in the care of their mother on Mother’s Day and spend time with their father on Father’s Day. Mother’s Day will certainly arrive before the final hearing, as it is the second Sunday in May.
Turning to the vexed question of changeover during the school term, the father makes a valid point about the time needed for him to leave work on a Friday afternoon to collect the children from school by 3.10pm. It would seem to be in the children’s interests for them to go home after school on a Friday, change their clothes, have some afternoon tea and be ready with everything they need for a weekend with their father. The father need not enter the house and the mother need not leave the house if there is a fear of a scene between the parents.
However, the father’s proposal that he should take the children to work on a Monday morning and the mother should then drive into the city to collect them is clearly not in the children’s best interests. It would appear to be highly burdensome on the mother also. The father’s proposal would involve the children being driven into the city from (omitted) and then being driven back from the city to (omitted) before they went to school, much of it in peak hour traffic. It would be unduly onerous on the children and not in their best interests.
Despite the mother’s opposition, dropping the children off at their home on a Monday morning an hour or more before they are due to start school, which on the evidence is only about a ten minutes walk from their home, is not an unreasonable arrangement.
The proposed trip to the (country omitted) in September and October 2013 is, on its face, in the children’s best interests. They are unlikely to have too many opportunities to see their paternal grandparents who live in the (country omitted). The father’s evidence is that his parents are both aged 80 and his father has had a leg amputated. This is likely to affect their mobility and the grandparents are unlikely to travel to Australia with any frequency.
The parties will need to consider this issue at the final hearing because it would seem to be something that will occur every year whilst the grandparents are still living.
The mother’s concern about the proposed 2013 visit is not that it should happen, but the length of the trip. The father’s proposed travel dates will take the children out of school for a few days at the end of term.
The Court needs to balance the benefit to the children of having a holiday in the (country omitted) and seeing their grandparents against the detriment of their missing some time at school. Clearly, the children’s ages and the stage of their education will be relevant.
Neither party tendered any evidence of the school term dates in 2013 to show how many days of school the children would miss by going on holiday at that time. However, school term dates in New South Wales Public Schools are matters of common knowledge in New South Wales. Section 144 of Evidence Act 1995 (Cth) provides:
(1) Proof is not required about knowledge that is not reasonably open to question and is:
(a) common knowledge in the locality in which the proceeding is being held or generally; or
(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.
(2) The judge may acquire knowledge of that kind in any way the judge thinks fit.
I have had recourse to the NSW Public Schools Website. The Website shows that the NSW School Term 3 ends on Friday 20 September 2013. School resumes on Tuesday 8 October, the day after the Labour Day public holiday Monday.
The two younger children are in Primary School. X will commence in Year 7 at (omitted) High School in 2013. It will not cause any great harm to the children’s education if they were to miss the final three days of Term 3 for the purpose of a holiday in the (country omitted) to see their grandparents. If the children were to go on holiday on Wednesday 18 September and return to Australia on Monday 7 October in time to start the school term the next day, they would be able to have a holiday for a day less than 3 weeks for the loss of only 3 days school at the end of term.
I propose to order accordingly.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 7 January 2013