Milavic and Banks

[2016] FamCA 352

FAMILY COURT OF AUSTRALIA

MILAVIC & BANKS [2016] FamCA 352

FAMILY LAW – CHILDREN – INTERIM ORDERS – Limited issue – June/July school holidays – where the father seeks equal time with both children – where the mother seeks that the father’s time with the child with special needs be limited – evidence of the family consultant considered – orders made for the children to spend equal time with the mother and father over the school holidays on a graduated basis

Family Law Act 1975 (Cth)

Banks & Banks [2015] FamCAFC 36; (2015) FLC 93-637

APPLICANT: Mr Milavic

RESPONDENT: Ms Banks

FILE NUMBER: DGC 242 of 2007

DATE DELIVERED: 16 May 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 22 March 2016

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Ms Wheeler

SOLICITOR FOR THE RESPONDENT: Sam Holt

Orders

IT IS ORDERED THAT

1. Paragraphs 2(a), (c), (d), (f) and (g) of the orders made 6 September 2013 be suspended from 17 June 2016 to 14 July 2016.

2. The children B born … 2006 and C born … 2011 spend time with the father as follows:

   (a)       from 9.00 am on 19 June 2016 until 9.00 am on 21 June 2016;

   (b)       from 9.00 am on 24 June 2016 until 9.00 am on 27 June 2016;

   (c)       from 9.00 am on 1 July 2016 until 9.00 am on 5 July 2016; and

   (d)from 9.00 am on 9 July 2016 until the commencement of school or 9.00 am on 13 July 2016.

3. The father’s oral application for holiday time during the June/July 2016 school holidays be otherwise dismissed and removed from the list of cases awaiting hearing.   

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 242 of 2007

Mr Milavic

Applicant

And

Ms Banks

Respondent

REASONS FOR JUDGMENT

1. The final hearing of this matter was completed on 12 November 2015. On that date I adjourned the matter to a date to be fixed for judgment. Shortly thereafter the mother moved from the home in which she had been living to another property she owns and proposed to move the two children of the relationship, who are the subject the parenting applications listed for hearing before me, to new schools. On 20 January 2016, when the parties could not reach agreement in relation to the children’s schooling the mother filed an Application in a Case  seeking that the mother be permitted to enrol the children the subject of the proceedings at specific schools commencing Term 1, 2016 and that the father sign any enrolment forms to give effect to such enrolment.

2. In circumstances where the Court was required to make parenting orders with respect to the two children of the relationship one of whom has been diagnosed as being on the autism spectrum and there appeared to have been a change in the mother’s arrangements for the children’s care and no agreement in relation to the children’s schooling, the case was reopened and is now listed for a further six days of hearing commencing on 1 August 2016.

3. At the mention of the matter before me on 22 March 2016 the father sought orders and I granted leave to him to make an oral application with respect to the children’s time with him during the school holidays pending the further hearing. Although the parties were able to agree upon the suspension of the orders of 6 September 2013 with respect to the children’s holiday time with the father and what time the children should spend with him during the March/ April school holidays they could not agree upon arrangements for the June/July school holiday period. 

Background

1. The mother was born in 1974 and is now 41 years of age. The father was born in 1983 and is now 33 years of age. The parties met in January 2005 and commenced cohabitation in July of that year. The mother was 31 and the father was 22 at the time they commenced living together.

2. The parties’ first child B was born in 2006 and is now 10 years of age. The parties separated for the first time in May 2006 a matter of months after B’s birth.

3. The parties’ second child C was born in 2011 and is now five years of age. C has been diagnosed as being on the autism spectrum.

4. Although the history of the parties’ relationship and the litigation itself is relatively complex  it is not necessary for me to canvass that history for the purposes of the limited matter I am required to determine.

5. The starting point for the purposes of the decision I must make is the final orders made by consent on 6 September 2013, and specifically paragraph 2 of those orders, which provided for the children to spend time with the father as follows:

   (a)Each Wednesday from after school (or 3:30 pm whichever is applicable) until Thursday morning at 8:00 am;

   (b)…

   (c)In each alternate week Friday from 4:00 pm until Saturday morning until the commencement of netball otherwise 4:00 pm commencing 14 September 2013. The father collect the children from and return the children to the mother’s premises;

   (d)On each alternate Saturday at 8.00 am until Sunday at the commencement of netball otherwise 4:00 pm commencing 7 September 2013…;

   (e)For 3 hours on each of the children’s birthday’s and the father’s birthday from 3:30 pm until 6:30 pm…;

   (f)That in respect of the child [B] for the Saturday to Sunday until the commencement of netball otherwise 4:00 pm following the Friday referred to in paragraph 2(c) above.

   (g)That in respect of school term holidays and the child [B] the father have the first half and the mother have the second half of such holidays.

6. Notwithstanding that these were final parenting orders there was no order made with respect to parental responsibility. Although in this case I am being asked to make interim parenting orders the presumption of equal shared parental responsibility applies unless the court considers that it would not be appropriate in the circumstances of the particular case for the presumption to be applied when making the orders (s 61DA(3) of the Family Law Act 1975 (Cth)). Both the father and the mother have sought final orders for equal shared parental responsibility and I am satisfied that there is no reason why the presumption should not apply in relation to these interim proceedings.

Legal Principles

1. In the recent decision of  Banks & Banks [2015] FamCAFC 36; (2015) FLC 93-637 the Full Court made the following observations with respect to the legislative pathway identified in Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286 in the context of interim proceedings:

   47.As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors. 

   48.It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant.  By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial.  The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.   

   49.Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available.  Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees.  It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.

   50.When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors.  Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations.  Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

   (original emphasis)

2. The circumstances in this case are somewhat different to most cases in which the parties seek an interim order in that although the matter is still proceeding, the parties and their witnesses have already given evidence and been cross examined as has the family consultant. Albeit that is the case, the issue I must determine is of limited ambit and in those circumstances not all of the s 60CC factors are relevant and the significance of those that are relevant is also circumscribed by the limited nature of the matter I must determine.

Discussion

1. The issue I am being asked to determine is what time the children should spend with the father during the forthcoming June/July 2016 school holidays, those school holidays for these children being from 17 June to 13 July 2016.

2. The father’s proposal by way of final orders is that both children should spend half of each school holiday period with him however he proposed that for the forthcoming June/July school holiday period the children should spend alternating five day periods with both he and the mother. The mother proposed that there be a more gradual introduction of holiday time with the father and that during the June/July 2016 school holidays the father spend no more than four nights with B and two nights with C that proposal being, in summary, as follows:

   Mother:         17 June 2016 to 9.00 am on 21 June 2016

   Father:9.00 am on 21 June 2016 to 9.00 am on 23 June 2016 (C)

   9.00 am on 21 June 2016 to 9.00 am on 25 June 2016 (B)

   Mother: 9.00 am on 25 June 2016 to 9.00 am on 29 June 2016 (C and B)

   Father:9.00 am on 29 June 2016, 30 June 2016 to 9.00am on 1 July 2016 (C)

   9.00 am on 29 June 2016, 30 June 2016, 1 July 2016 to 9.00 am on 3 July 2016 (B)

   Mother:9.00 am on 3 July 2016 to 9.00 am on 7 July 2016 (C and B)

   Father:           9.00 am on 7 July 2016 to 9.00 am on 9 July 2016 (C)

   9.00 am on 7 July 2016 to 9.00 am on 11 July 2016 (B)

   Mother:9.00 am on 11 July 2016 to 9.00 am on 15 July 2016 (C and B)

   Father:9.00 am on 15 July 2016 to 9.00 am on 17 July 2016 (C and B)

3. On 22 March 2016 the father and the mother consented to orders which provided for B to spend time with the father for one period of four nights, one overnight and finally two overnights during the Term 1 school holidays. The orders also provided that C spend two periods of two nights and one overnight with the father coinciding with B’s time with the father. Although this is an increase in time from one overnight to two overnights for C, it is significantly less time than the orders of 6 September 2013 provided for B to spend with the father, that being for half of school term holidays.

4. Whilst a great deal of time was taken up during the final hearing with allegations of family violence allegedly by both the father and the mother, in circumstances where those allegations are largely historical, the children have been living with the mother and spending time with the father on a regular basis and they are both proposing that the children should spend time with each of them during school holiday periods, the allegations of family violence are of limited relevance to the issue I must determine.  

5. This is not a case in which it is suggested that the father poses a risk of abuse, as whether I accede to the father’s proposal or the mother’s proposal the children will be spending holiday time with the father. The issue I must determine is whether they should spend in the case of B a maximum of four consecutive nights and C two consecutive nights or whether as proposed by the father they should each spend five consecutive nights with him. 

6. Albeit that the father is now proposing to amend his application for final orders to seek orders that the children both live with him, neither he nor the mother suggest that the children would not benefit from having a meaningful relationship with both of them. Whether the children spend a maximum of two nights with the father or five nights as he proposes during the June/July school holidays, I am satisfied that they appear to have a meaningful relationship with both the father, the mother and their half siblings and will continue to do so.  B is reported by the family consultant Ms D in her Family Report dated 24 April 2015 (“the Family Report”) at paragraph 40 as having identified feeling cared for in the father’s care and enjoying her relationship with both the father and her paternal grandparents. She was also reported at paragraph 41 of the Family Report to have told Ms D that it was more exciting to stay at home with the mother “because she has friends who live close, her horses and often her mother will take her to stay at the [E Hotel]”. Ms D described B at paragraph 45 of the Family Report as being “as relaxed with [the father] as she did with her mother”.

7. Ms D observed at paragraph 45 of the Family Report that although C refused to leave the mother’s arms, the father did “attempt to engage [him] and utilise distraction techniques” and was “calm and engaging” and concluded at paragraph 50 that “it appeared most likely that [C] also recognises his father as a safe and supportive attachment figure who he also looks to for comfort”.

8. Ms D recommended at paragraph 61 of the Family Report that both children spend equal time with the father and the mother during school holidays. Although during cross-examination she acknowledged that there might be some merit in an incremental increase of C’s time with the father, she also said that the increase did not need to be as gradual as the mother proposed. Significantly for the purposes of the decision I must make Ms D, acknowledging the impact upon C of changing the arrangements, said that that although the structure of C’s time with the father during holidays would be different than during school terms, B being present during that time would be likely to help C to manage the changes. I am also mindful of the fact that Ms D wrote the Family Report 12 months ago and that the children are a year older.

9. In all of the circumstances I am satisfied on the balance of probabilities and in particular having regard to the evidence of Ms D that the children’s time with the father during the forthcoming June/July school holidays should be increased from two nights overnight to three nights overnight and ultimately to four nights overnight and that both children should spend the same time with each of the father and the mother. The orders I propose to make will also allow the children to spend time with their half-sisters on their birthdays as proposed by the wife.

10. As a consequence of the orders I propose to make the children will be spending the four nights preceding the commencement of the school term on 13 July 2016 with the father. Although in accordance with paragraph 2(a) of the orders of 6 September 2013 the children would ordinarily spend each Wednesday from after school until Thursday morning with the father, I propose to suspend their time with the father on Wednesday 13 July 2016, being the first day of Term 3, in order to maintain the four nights overnight regime built up during the June/July 2016 holidays.

11. Although it also means that during the June/July school holidays this year B will initially be spending less time with the father I am satisfied that there are advantages to both children spending equal time with each parent and that this will help in establishing a sound foundation for holiday arrangements moving forward.

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 16 May 2016.

Associate: 

Date: 16 May 2016