Miers and Miers
[2008] FMCAfam 1387
•18 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MIERS & MIERS | [2008] FMCAfam 1387 |
| FAMILY LAW – Time with – narrow ambit of dispute – appropriate to make interim rather than final orders. |
| Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC(2), 60CC(3), 60CC(4), 65DAA |
| Applicant: | MR MIERS |
| Respondent: | MS MIERS |
| File Number: | HBC 690 of 2007 |
| Judgment of: | McGuire FM |
| Hearing date: | 19 November 2008 |
| Date of Last Submission: | 19 November 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 18 December 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Crotty |
| Solicitors for the Applicant: | James Crotty Barristers & Solicitors |
| Counsel for the Respondent: | Mr Smith |
| Solicitors for the Respondent: | PWB Lawyers |
THE COURT ORDERS
That the Applicant father and the Respondent mother have equal shared parental responsibility for the child [Y] born in 2000 (“[Y]”).
That until further order, [Y] live with the mother.
That until further order, [Y] spend time with and communicate with the father as follows:
(a)Each second weekend between Friday after school until Monday at the commencement of school;
(b)In the other week, for the Tuesday evening meal at such times as agreed between the parties but failing agreement between 4:00pm and 7:00pm;
(c)In the alternate week from Thursday from the end of school until Friday at the commencement of school;
(d)During the Tasmanian Gazetted summer school holidays on a week-about basis as agreed between the parties but failing agreement to commence at 5:00pm on the first Monday of the school holidays with changeovers to occur on each subsequent Monday;
(e)At such other times as agreed between the parties.
That pursuant to section 11F of the Family Law Act 1975 the parties attend reportable family dispute resolution with a family consultant nominated by the Children’s Dispute Services in the Hobart Registry
of the Family Court of Australia in relation to the child [Y] born in 2000 on a date to be advised but not before 30 June 2009. The Court requests that Ms Ineke Stierman be nominated as the family consultant given her previous involvement in this matter.
That the matter be listed for phone mention in chambers at 9:30am on
a date to be fixed in late June or early July 2009 before Federal Magistrate McGuire.
THE COURT DIRECTS
That the solicitors for the parties jointly bring in a minute of consent orders in respect of the living arrangements for both [X] and [Y] within 14 days of the date of these reasons.
IT IS NOTED that publication of this judgment under the pseudonym Miers & Miers is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
HBC 690 of 2007
| MR MIERS |
Applicant
And
| MS MIERS |
Respondent
REASONS FOR JUDGMENT
Application
This is the father’s application for parenting orders in respect of one of the children of the parties, namely [Y] born in 2000 (aged 8 years).
Prior to the commencement of the hearing, the parties to their great credit had agreed the majority of the living arrangements for [Y]. Accordingly, I intend to make a number of orders by consent. Again to their credit, the parties have agreed final orders in respect of their older child, namely [X] born in 1994 (aged 14 years).
Consequently, there remains for my determination only two discrete issues. Firstly, the parties cannot agree the amount of time that [Y] will spend with her father on a fortnightly regime. Secondly, the parties differ as to summer school holiday living arrangements for [Y] with the father. The father seeks four weeks of those holidays with [Y]. The mother is of the view, in accordance with the family consultant’s recommendations, that [Y] should spend only three weeks of the summer holidays with the father. In Tasmania those school holidays are of approximately eight weeks’ duration.
Background
The parties married in November 1997 and separated on 10 July 2003. They were divorced on 26 December 2005.
Subsequent to separation, and for about two years, the children lived
in a shared care arrangement between the parties on a week-about basis and apparently without the need for court intervention or orders.
This arrangement ended in 2005 coinciding with the father re-partnering.
It is the wife’s evidence, however, that the change in regime was not unilaterally imposed by her, but by agreement between the parties.
She says that the parties recognised some difficulties for the children in the change of priorities of the father’s time, given his new relationship. I accept the mother’s evidence in this respect.
Equally, however, it is clear that the father soon thereafter pressed for
a return to an equal shared care arrangement of the children, culminating in his application to this Court, filed 10 May 2007.
The mother initially resisted that application in respect of both children, but conceded shared care of [X] after the release
of the first family report in October 2007.
[Y] has since been spending time with the father each alternate weekend from Friday after school until Monday morning, and alternate Thursdays overnight in the “off-week” together with a few hours
on Tuesdays for the evening meal.
Parties’ proposals
The mother’s proposal for [Y]’ time with the father is:
a)The status quo for fortnightly time;
b)A regime of summer holiday time as suggested by the family consultant, being:-
i)2008/09 and in each alternate year thereafter
·first week – mother
·second week – father
·third and fourth weeks – mother
·fifth week – father
·sixth and seventh weeks – mother
·eighth week – father
The sequence is different in alternate years, but the result is the same in that [Y] would spend three out of eight weeks with the father during the summer holiday period.
The father proposes as follows:
a)To relinquish the Tuesday evening meal time;
b)That the weekend time as proposed by the mother commence on the Thursday after school, rather than on the Friday;
c)That the “off-week” time commence from the Wednesday instead of from the Thursday as suggested by the mother;
d)A regime in the summer holidays where [Y] spends two weeks with each parent in turn or, to put it in another way, four weeks with the father during the summer school holidays in two blocks each of two weeks.
As indicated, the remaining issues are narrow and discrete. They appear to amount to two nights (less one evening) for time between [Y] and her father during the school weeks and a dispute over one week with the father in the summer school holidays.
The evidence
Both parties gave evidence, relied on affidavits, and were cross-examined. Neither party adduced any further evidence.
The Court and the parties had the benefit of two reports from
the family consultant. Those reports were dated 9 October 2007
and 20 August 2008. Interestingly, neither party sought to cross-examine the family consultant. The second report was made at the behest of the father with a specific request to canvass the views
of [Y]. Only [Y] was interviewed for the purposes of the second report.
The essence of both reports is:
·[Y] appears to be more aligned to the mother;
·[Y] wants to spend “most time” with the mother;
·That [Y] was aware that her father wanted her to “stay over for longer”;
·That [Y] found some difficulty with movement between the two homes;
·
That her preference (not surprisingly) would be for her parents
to live together again;
·That she does not wish to return to a “shared parenting arrangement” (although she apparently has little or no recollection of that arrangement which ended in 2005);
·[Y] was of the view (page one of the second report) that the father would be “sad” if she did not have extra time with him and conversely and that her mother would be “sad” if she had extra time away with the father;
·That [Y] found difficulty in expressing her views to her father but was, in fact, able to do so in the presence of the family consultant.
Father’s case
The father’s case can be summarised as follows:
·That he has heeded the advice of the family consultant and does not seek equal shared time but only two extra nights per fortnight, being on my calculations a total of six nights per fortnight with [Y];
·
That the family consultant’s concerns and recommendations
in respect of [Y] are based on an assumption of equal shared time. Ms Stierman, the consultant, in the updated report at page one states:
[Y] chose (bear) cards which indicated she would have very strong emotions if orders were made for her to have a shared care arrangement.
·That, in any event, [Y] is only eight years of age, and the veracity of her views should be seen in the light of her obvious sense of loyalty to both parents or, to put in another way, that her views are not independent, rational or mature;
·
That [Y] in fact says to him that she would like to spend more time with him and that she readily settles after initial unease. This argument is the rationale of him seeking a period
of two nights in one week. Hence that the slightly longer periods allow for [Y] to settle into each household and that his proposals are therefore ultimately in [Y]’ best interests;
·
He says that his proposal is “fair”. I am unsure as to whether
he means “fair” for him or “fair” for [Y]?
·He refers to the history of [X]’s time with him, and to the fact that the mother was initially reluctant to accede to [X]’s stated views for an equal shared care arrangement but did ultimately consent. The parties appear to be in agreement that the arrangements for [X] are working well and in [X]’s best interests;
·That simply there is no need to adopt the family consultant’s proposals for summer holidays, and that, in any event, the mother herself proposed sharing the holidays on a basis of [Y] spending two weeks with each parent in turn;
·
The father made some minor criticisms of the mother’s parenting, but I do not place much store in these statements and am of the view from seeing both parties in the witness box and reading
the material that each is a good parent for [Y] and that she
is fortunate to have two caring and dedicated parents.
Mother’s case
The mother argues:
·
That where both parents are able to provide proper care and facilities for the child, then that child’s happiness should
be a determining factor;
·
That the father acknowledges the child’s statements to the consultant but refuses to accept that the proposals of the mother would result in the child being “happier”. I should say that this
is really the basis of the dispute being the parties’ interpretation of the comments of [Y] to the family reporter;
·That the father pursues his application from a philosophical viewpoint of “fairness” to himself, rather than the ultimate best interests of [Y];
·That [Y]’s views are consistent across two reports and ten months and, if not demonstrative of maturity, do consistently show the potential negative reaction of [Y] if further separated from the mother;
·
That the family consultant brings an independent assessment
of [Y]’s views and her recommendation should therefore be given some considerable weight;
·That to go against [Y]’s views may have the result of damaging her relationship with her father.
·[Y] is still young. That her primary attachment is currently to the mother. Shared time or more time with the father is a possibility (even likelihood) but not yet.
The law
The parties have agreed that their parenting orders should provide for equal shared parental responsibility for [Y]. The consideration for the Court, therefore, is as to whether [Y] spending equal time or, significant and substantial time, with each of the parties would
be ultimately in her best interests and is reasonably practicable.[1]
[1] See s.65DAA(1) and (2) of the Family Law Act 1975 (Cth)
As previously indicated, the father does not seek equal shared time. Both parties, in fact, seek orders that would give the father substantial and significant time pursuant to the definition of that term.
Sections 60CC(2), (3) and (4) of the Family Law Act 1975 (“the Act”) provide me with guidance as to the considerations relevant to the best interests of [Y].
The primary considerations are set out in s.60CC(2). They are:
(a)The benefit of the child having a meaningful relationship with both of the child’s parents; and
(b) The need to protect the child from physical or psychological harm from being subjected to or exposed to, abuse, neglect or family violence.
Section 60CC(2)(b) is not relevant in this case. The evidence of the parties and the supporting materials make it clear that both parties acknowledge the need for [Y] to have a meaningful relationship with both her parents.
Section 60CC(3)(a) is relevant. It obliges me to consider:
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.
[Y] is just eight years of age. It is clear from the family reports and the evidence of the parties that she loves both her parents deeply. It is equally clear that she suffers from divided loyalties. Her comments as to her fear that her parents would experience “sadness” says much that she does not wish to have the responsibility of making such decisions in her life and does not wish to offend either of the people that she loves the most.
It is true that [Y]’ views have been consistent. In the updated family report it was noted at page one:
[Y] expressed confusion as to the purpose of the interview and the nature of the parents’ disagreement. She was unable to clearly explain the current parenting arrangements, either for herself or for her brother.
I am not convinced therefore that they are views which show a high degree of rationality, understanding or maturity.
Section 60CC(3)(b) deals with the nature of the relationship of the child with each of the child’s parents and other relevant persons in her life. [Y] loves both her parents. Her relationship with each cannot be impeached. The issue left for my determination is discrete in the extreme. The family consultant speaks of [Y] being “aligned” with her mother. This may be the case. However, it does not cause me to consider that the nature of the relationship between [Y] and her father is such that it is determinative of this issue.
There was some evidence as to the nature of her relationship with
her brother [X], or, more particularly, that each of the children may have desired some time alone with each of the parents. Both proposals would give [Y] some time alone with her mother. Both proposals would [X] some time alone with his father.
Section 60CC(3)(c) speaks of 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. Again, two competing proposals indicate clearly that both parties encourage and facilitate [Y]’s relationship with the other. The dispute is only in the detail.
An interesting and, in my view, most relevant piece of evidence
came to light during the course of the hearing. That is, the mother during cross-examination informed the Court that on the previous evening, being a Tuesday, [Y] stayed overnight with the father. The current arrangements allow [Y] only to spend time for an evening meal with her father. The evidence was that [Y] had requested that she spend extra time with her father. This in itself is a significant factor in assessing the developing maturity and confidence of [Y]’s views. Further, however, of relevance is that the mother readily agreed to [Y]’s request. I must comment that in light of the capacity of the parties to agree the majority of issues for [Y] and her brother together with this important recent event leads me to again question why the parties themselves have seen fit to leave such a small and discrete issue for my determination.
Section 60CC(3)(d) is relevant. It speaks of the likely effect of any changes in the child’s circumstances, including the effect on the child of any separation from either of her parents. The mother is anxious that [Y]’ views be given full consideration and weight. It is a question that I must consider as to the effect on [Y] of going against those views. It is true that she says that she wishes to spend “most” time with her mother. There is reference in the family report to [Y] herself feeling “sad” or “alone” if she is required to spend more time away from her mother than is currently the case.
At page two of her updated report, Ms Stierman says:
[Y] is emotionally aligned to her mother and indicates very clearly that she would be distressed if their time together is reduced.
The opinion of the expert was not challenged or tested. I must therefore give this evidence, as with all unchallenged evidence, considerable weight. The term “distressed” does, in my view connote a strong potential reaction in the child.
As to sub-paragraphs (e) and (f) of s.60CC, I do not see any issues
of practical difficulty or expense. It is also implicit in the orders sought by each of the parties that there can be no issues as to the relative capacity of each of them as parents. To the contrary, the very nature of the orders sought by each party must lead me to conclude that each has the utmost confidence in the other as a parent for [Y].
Section 60CC(3)(l) is relevant to this matter. I am obliged to consider whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child. I concluded from the mother’s evidence and from her statements to the family consultant that she acknowledged that eventually there would be an arrangement for [Y] where she spends more time with her father and even perhaps to the stage of equal shared care. If I am correct in this assumption, then the issue is even narrower than first apparent. That is, the mother may simply be asking for orders “until further order” or, to put it another way, arguing that [Y] is not yet ready for the regime proposed by the father albeit one which gives only two extra nights per fortnight from her own proposal.
At paragraph 76 of her affidavit filed 5 March 2008 (some eight months prior to the hearing) the mother said:
[Y] is not ready to move into a shared care arrangement.
And at paragraph 80:
A need for ongoing and effective communication will be necessary to properly share parenting of [Y].
In summary, therefore, I have seen the major considerations for me to be the following:
a)
What weight am I to put on [Y]’s stated views as reported
by the family consultant;
b)Are those views current in light of the interesting events of the evening prior to the hearing;
c)
The history of the parties in being able to put aside their personal animosity for the benefit of their children, and, in particular,
in light of the objects and principles of s.60B of the Act, which states at s.60B(2)(d) that: “parents should agree about the future parenting of their children”;
d)The narrow ambit of the dispute.
When making any parenting order, I must regard the best interests of [Y] as the paramount consideration in accordance with s.60CA of the Act.
After much consideration and balancing of all the evidence, I am of the view that I should make only an interim order in respect of [Y] at this stage. In coming to this conclusion I have taken into account the following:
a)The evidence of the mother set out above which in my view contemplates further time between [Y] and her father.
b)The events of the evening prior to the hearing.
c)The apparent success of the move for [X] into a shared care arrangement.
d)The unchallenged comments of Ms Stierman in her first report at page three:
[Y] does not appear to be ready for a shared arrangement at this time. However, she needs a clearer boundary between the two households and enough time at her father’s home to develop a stronger connection.
e)Ms Stierman’s further comments in her second report in the last paragraph:
[Y] is in grade 2 this year. When she is in upper primary school, she may express different views and be willing to extend her time living at her dad’s house.
In respect of school terms, therefore, I am of the view that the current arrangements should remain on foot for [Y]’s time with her father. Having had the benefit of seeing and hearing both parents in the witness box as well as hearing the evidence as to [Y]’s request to spend overnight with the father during the week of the hearing, I have more optimism than does the family consultant as to [Y]’ development of her self-confidence.
Whilst [Y] will still be spending the majority of the time with her mother, my orders will allow the parties a further opportunity to agree a final order in respect of [Y]. Ultimately, I am of the view that [Y]’s best interests would be served by knowing in the long term that her parents had been able to agree all matters in respect of her living arrangements.
I am also left to determine the issue of school holidays. The competing proposals are set out above. They involve a difference of one week
in the summer holidays. I have considered Ms Stierman’s recommendations. However, I note that the mother herself in her application sought shared school holidays. I am not convinced of her conviction in changing her position. I am of the view that the child’s needs and priorities differ between school and holiday time. Again, taking into account all of the evidence, I am of the view that [Y] should spend equal time during the summer school holidays with each of her parents. Given her age, I am of the view that this should be on a week-about basis.
I am going to make an order that the parties and [Y] return to the family consultant in approximately six months for assistance with
a review of the living arrangements. I should say that I have some confidence that the skills of the parties as parents together with their loving relationship with their daughter is such that they may not
require further intervention from the family consultant and/or the Court. I will, however, list this matter before the Court for further mention and, if necessary, further hearing in approximately six months’ time, and after the interview with the family consultant.
Consequently, the following will be orders of the Court in respect of [Y]:
a)That the Applicant father and the Respondent mother have equal shared parental responsibility for the child [Y] born in 2000 (“[Y]”).
b)That until further order, [Y] live with the mother.
c)That until further order, [Y] spend time with and communicate with the father as follows:
i)each second weekend between Friday after school until Monday at the commencement of school;
ii)in the other week, for the Tuesday evening meal at such times as agreed between the parties but failing agreement between 4:00pm and 7:00pm;
iii)in the alternate week from Thursday from the end of school until Friday at the commencement of school;
iv)during the Tasmanian Gazetted summer school holidays on a week-about basis as agreed between the parties but failing agreement to commence at 5:00pm on the first Monday of the school holidays with changeovers to occur on each subsequent Monday;
v)at such other times as agreed between the parties.
d)That pursuant to section 11F of the Act the parties attend reportable family dispute resolution with a family consultant nominated by the Children’s Dispute Services in the Hobart Registry of the Family Court of Australia in relation to the child [Y] born in 2000 on a date to be advised but not before 30 June 2009. The Court requests that Ms Ineke Stierman be nominated as the family consultant given her previous involvement in this matter.
e)That the matter be listed for phone mention in chambers at 9:30am on a date to be fixed in late June or early July 2009 before Federal Magistrate McGuire.
At the commencement of the hearing counsel for the parties informed me that there was substantial consent to the living arrangements for both [X] and [Y]. I was told that a minute of orders would be provided. That has not happened. I direct that the solicitors for the parties jointly bring in a minute of consent orders in respect of both children and incorporating orders set out above within 14 days of the date of these reasons. The Court will then take out the orders.
I will give the parties liberty to apply in the interim.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of McGuire FM
Associate: Ann Creek
Date: 18 December 2008
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