Moriarty and Moriarty

[2016] FCCA 1466

FEDERAL CIRCUIT COURT OF AUSTRALIA

MORIARTY & MORIARTY [2016] FCCA 1466

Catchwords:
FAMILY LAW – Parenting orders – best interests of children.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA

Cases cited:

Goode & Goode (2006) FLC 93-286

Marvel & Marvel (2010) 43 Fam LR 348

SS & AH [2010] FamCAFC 13

Banks & Banks [2015] FamCAFC 36

Applicant: MR MORIARTY

Respondent: MS MORIARTY

File Number: PAC 876 of 2013

Judgment of: Judge Newbrun

Hearing date: 20 November 2015

Date of Last Submission: 20 November 2015

Delivered at: Parramatta

Delivered on: 30 May 2016

REPRESENTATION

Counsel for the Applicant: Ms Gardiner

Solicitors for the Applicant: Slater & Gordon Lawyers

Solicitors for the Respondent: Mr Cassidy

ORDERS

1. From 10 June 2016 to 10 September 2016, the children X born (omitted) 2008 and Y born (omitted) 2010 (“the children”) shall spend time with the father each alternate week from Friday after school (or otherwise from 3:30pm if a non-school day) to the commencement of school on Monday, (or otherwise until 9:30am if a non-school day); and thereafter the children shall spend time with the father in each alternate week from Thursday after school (or otherwise from 3:30pm if a non-school day) to the commencement of school on Monday (or otherwise until 9:30am if a non-school day).

NOTATION: These Orders are to be read in conjunction with the Amended Orders of this Court dated 20 November 2015.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 876 of 2013

MR MORIARTY

Applicant

And

MS MORIARTY

Respondent

REASONS FOR JUDGMENT

1. This is the matter of Moriarty final hearing. This final parenting hearing relates to the children, X, date of birth (omitted) 2008, and Y, date of birth (omitted) 2010.

2. At the final parenting hearing in these proceedings on 20 November 2015, the parties informed the Court that they had reached certain final parenting agreements in respect to the children. They informed the Court that in relation to the father spending time with the children during the school term times, that the following agreements had been reached:  in week 1 the children would spend time with the father from Friday after school to Monday before school (in each fortnight), and in week 2 the children would spend time with the father from Wednesday after school to Thursday morning before school.

3. The Court notes that prior parenting orders were made between the parties on 15 August 2013 by being interim orders, that, inter alia, the children spend time with the father each Wednesday afternoon from 5:00pm to 7:30pm, and in alternate weekends, from Friday 5:00pm to Sunday 5:00pm.

4. At the conclusion of the formal final hearing on 20 November 2015 the Court made final parenting orders in accordance with Exhibit A. Exhibit A, inter alia, confirmed that part of the parties’ agreement, stated with court at the commencement of the hearing, that the children would spend time with the father from after school Wednesday until the commencement of school Thursday in each fortnight. The parties’ agreement as to the children spending time with the father, on a fortnightly basis from Friday after school to Monday before school was not formally contained within Exhibit A, although there is no doubt, that the parties’ stated agreement in relation to the children spending time with the father from Friday after school to Monday before school, in alternate weeks, was indeed a final parenting agreement reached between the parties on 20 November 2015.

5. The Court should note that it held, by way of telephone link up, a brief mention of the matter with the parties’ respective solicitors, on 26 May 2016, and it was confirmed the afternoon following that telephone mention of the matter, that since 20 November 2015 (being the final hearing date of the parenting proceedings) the children had spent time with the father as follows:

   a)the children spend from Friday afternoon until Sunday afternoon in the father’s care on each alternate weekend; and

   b)the children spend overnight on a Wednesday in the father’s care in each other week.

6. Despite the above agreements of the parties, in relation to the time the children would spend with the father during school term times, the outstanding matter in dispute at the final hearing on 20 November 2015 was the father’s application that in the fortnightly week when the children spent time with him from Friday after school to Monday before school, that they additionally spend time with him from the Thursday after school;  accordingly, the husband was seeking a final parenting order, in conjunction with the agreement previously reached at the hearing on 20 November 2015, that not only should the children spend time with him from Friday after school to Monday before school in each alternate week, but that they spend one additional night with him commencing on the Thursday after school and, again, pursuant to the agreement reached, continuing until Monday before school, in each alternate week. The mother for her part, opposed the making of that additional order; she submitted that it was not in the best interests of the children for them to spend that additional night, that is on the fortnightly proposed Thursday night, and that the children should only spend time with the father during school term times from Friday after school to Monday before school in each alternate week, and in the off week, as agreed, from Wednesday after school to Thursday morning before school.

Material Relied Upon

1. The father relied upon his second amended initiating application filed 28 July 2015. He relied upon his affidavit filed 28 July 2015. He also relied upon the affidavit of his new partner, Ms R filed 28 July 2015.

2. The mother relied upon her amended response filed 5 August 2015 and the mother’s affidavit filed 21 July 2015. The parties also relied upon the family report dated 14 March 2014.

Chronology

1. (omitted) 1982 - date of birth of father.

2. (omitted) 1982 - date of birth of mother.

3. (omitted) 1983 - date of birth of father’s new partner.

4. 15 August 2013 - interim orders of the Court; equal shared parental responsibility, children live with mother, children spend time with father each Wednesday from 5:00pm to 7:30pm, and each alternate weekend from 5:00pm Friday to 5:00pm Sunday, as well as special days, and certain parts of the school holidays.

5. 2005 - parties commenced de facto relationship.

6. 2012 - mother returns to her paid employment; she works a part-time nightshift as a (occupation omitted) in a (employer omitted).

7. 28 March 2012 - separation of the parties. The father leaves the former matrimonial home and the mother stays with the children.

Agreed or Undisputed Relevant Facts

1. The mother lives in the (omitted) region. The father lives now at (omitted), with his new partner, Ms R. The husband works as a (occupation omitted) for (omitted).

2. The mother has cared for the children, since their birth, and the father has assisted regularly with their care when not working. The Court notes that otherwise the father has been in full-time employment.

3. The mother returned to part-time work when the child, X, was aged 9 months. After the second child’s birth, the mother took 2 years off work. Then the mother was the primary carer of the children. The mother returned to the paid workforce in 2012. The mother is now studying full-time, online, doing a course being “(course omitted)”.

4. According to the father, he has spent positive time with the children pursuant to the interim parenting orders of the Court dated 15 August 2013 and to date.

5. The father states that he and his new partner have been living together since mid-2013.

6. According to the father, his new partner and his parents can assist, when needed, with collecting the children from school and delivering the children to school.

7. The mother gave oral evidence at the final hearing in relation to the one outstanding parenting issue between the parties.  She was cross-examined.  In that evidence the mother agreed that the father is now living 10 minutes from her residence, with the father now living at (omitted).

8. The mother stated that she had agreed to the children spending Wednesday overnight with the father, (once per fortnight) and additionally to overnight on the Sunday (again per fortnight). The mother stated that the children are presently aged five years and seven years, and that any additional nights:

   … on top of those two nights that I have already agreed to would be too much for the girls to take on at the moment, as they are in kindergarten and Year 1 … they are in a good routine with what they’ve got … I think asking for the Thursday night (each fortnight) is too much.

9. The mother stated in oral evidence that when the children spent one week in the school holidays with the father that on two occasions they were crying and wanted to come home.

10. The mother stated in oral evidence that she agreed that she knows that the father wants to spend as much time with the children as he can.

Relevant Legal Principles

1. Relevant principles in relation to parenting proceedings including interim proceedings are well settled:  see Goode & Goode (2006) FLC 93-286.  .

2. In Marvel & Marvel (2010) FamCAFC 101, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:

   [120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   [122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   [123] Later, at [100] their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”

3. The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks & Banks (2015) FamCAFC (especially at paragraphs 46 to 52).

4. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets outs the objects of Part VII of the Act, relating to children that inform the making of parenting orders.

5. In deciding whether to make a particular parenting order in relation to the child, a court must regard the best interests of the child as a paramount consideration: section 60CA of the Act.

6. Section 60CC of the Act provides that in determining what is in the child’s best interest, the Court must consider the matter set out in subsections (2) and (3).

7. When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61BA of the Act. When the Court is making an interim order, the presumption applies unless the Court considers it would not appropriate in the circumstances for the presumption to be applied when making that order: section 61BA subsection (3).

8. If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.

9. If equal time is found not to be in the child’s best interests or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65DAA subsection (3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC or impracticable.

10. If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: section 60CA, 60CC, 65D.

The Best Interests of the Children

Section 60CC Considerations

Subsection 2a (meaningful relationship primary consideration)

1. The children enjoy a meaningful relationship with both parents and would benefit from a continuation of those relationships.

2. The mother stated to the family report writer that the children want to see the father on weekends, they love to see him, and “It is essential for the children to be with the father.” She stated “I don’t want them to feel they are not loved (by the father).”

3. On 8 March 2014 the mother stated to the family report writer, inter alia:

   Two nights on alternate weekends, and Wednesdays for dinner, were sufficient for the children to maintain a relationship with the father.

4. The mother contended that because the father lives at (omitted), the children would face a long journey to school.  The mother added that the children were too young to be away from her for several consecutive nights.  The mother conceded that the children spending increased time with the father may be acceptable when they are “older”.  The mother could not be drawn by the family reporter on how old the children would need to be in this context.

5. The mother stated to the family report writer that a substantial change in the children’s contact arrangements with the father would interfere with their routine.  According to the family report writer, he stated, inter alia:

   It was clear X has a close and affectionate relationship with the father, a relationship which would be enhanced if she were to spend more time with him. 

6. The family report writer stated that this assessment indicates that the father is a concerned and interested father who wants a more substantial and productive relationship with the children, facilitated by spending more time with them.

7. The family report writer stated that, as sought by the father, an increase in the time he spends with the children is indicated by this assessment.  It was stated that nevertheless, the father does not yet live close to the children, and the mother may need time to adjust to a proposed increase in the time he spends with the children.  Therefore, according to the family report writer, the current arrangement might remain in place during 2014. The family report writer stated that when Y begins to attend school in 2015, that she and X might spend three nights with their father over alternate weekends, and one night during the intervening week.

8. The family report writer, when he made his report of 14 March 2014 (noting interviews were carried out with relevant parties and the children on 8 March 2014) was of a view, inter alia, that a parenting order providing for the children to spend each fortnight from Thursday to Monday seemed a fairly substantial change for the two girls to adjust to.  He stated that such a parenting order (each fortnight from Thursday to Monday) might be something that may evolve as the children get used to, say Friday afternoon to Monday morning.  The family report writer stated that at this point, because the children are used to, over a weekend, two nights, to go to four nights, is just a little bit of a change and is a little much.

9. The Family Report writer stated that it was a foregone conclusion that the children benefit from spending time with the father. The Family Report writer stated:

   But I don’t know whether the children would adjust (to four nights on a weekend) or not.

10. The Family Report writer stated:

    If the Court were to order (some four consecutive nights each fortnight), I would think that a graduated program of increased involvement with the father would be appropriate, within six months.

11. In the view of the Court, the children’s meaningful relationship with the father would likely be enhanced and maintained by spending time with him, each fortnight, from Thursday after school to Monday before school, in addition to the Wednesday night in the off week, but on a graduated basis. The Court gives significant weight to this meaningful relationship primary consideration.

Subsection 3(a)

1. According to the mother the child X looks forward to sleepovers with her father and both children speak positively as to their time spent with the father and his new partner.

Subsection 3(b)

1. According to the father, the children have positive relationships with his new partner and his parents. The mother states that the children are emotionally close to the maternal grandparents.

Subsection 3(c)

1. It would appear that both parents have so taken such opportunities, although there is some disputation between the parties on the affidavit evidence as to the regularity of the father spending time with the children during holidays.

Subsection 3(ca)

1. According to the father he pays child support of some $1,127 per month.  Apparently the father did not pay child support for some seven months when he was unemployed.

Subsection 3(d)

1. In the view of the Court, provided the children commence to spend time with the father, in each fortnight, from Thursday after school through to Monday before school on a graduated basis, they should not likely experience any detrimental emotional harm in terms of their increased separation from the mother.

Subsection 3(e)

1. The Court notes that the father has moved from (omitted) to (omitted) and that he now lives relatively close to the mother’s residence in the (omitted) area.

Subsection 3(f)

1. It would appear that both parents have such capacities.

Subsection 3(g)

1. The Court notes the children attend (omitted) School. The eldest child is in Year 2 and the younger child is in Year 1. According to the father the children are progressing well. The father states that he has an anxiety condition which is being treated with medication.

Subsection 3(i)

1. Both parties would appear to have demonstrated a responsible attitude towards the parenting of the children.

Subsection 3(j)

1. According to the mother there was family violence perpetrated by the father against her during the relationship. These assertions of such family violence are denied by the father. The Court notes the father’s new partner asserts that her relationship with the father is not comprised of any violence or abuse. The father’s new partner maintains the father is a gentle natured person who for the most part is able to control his emotions.

1. According to the father, the mother yelled and swore at the eldest child, on an occasion when the mother was sleep deprived.

Subsection 3(m)

1. According to the father the parties now communicate without difficulty; most communications are by text message, but if there are important issues, then phone or face-to-face communication takes place at changeovers.

2. According to the mother the mother’s father helps the mother in taking the children to and from school.

3. According to the Family Report writer, at the interviews with the parties on 8 March 2014, the father told the Family Report writer that the present relationship with the mother was tense. At that interview the mother told the Family Report writer that she has no relationship with the father, and that she rarely speaks to the father, only communicating with him by text messages.

4. By contrast, when the mother gave oral evidence at the final hearing on 20 November 2015, she stated that she was getting on fine now with the father.  She stated that she was getting on quite well with the father.  The mother stated that face-to-face changeovers with the father are going fine. The wife stated that the parties speak with each other civilly, if there are matters that the parties need to discuss about the children. The mother stated in her oral evidence that communication with the father over the last 2 years or so has been going okay and normally has been without disagreement.

5. Neither party seeks an equal time order. On the evidence before the Court, including noting the ages of the children, and the historical nature and extent of time spent by the children with the father, the Court is not satisfied that it would be in the best interests of the children to presently be subject to an equal time arrangement.  Reasonable practicality in this context is probably not an issue in these proceedings, noting the father’s recent move from (omitted) to live at (omitted).

6. The parties’ agreements at this final hearing in relation to the time that the children spend with the father, probably represents substantial and significant time under the Family Law Act 1975. The Court proposes to make a final parenting order that the children’s time with the father, in each fortnight, begin from Thursday after school and continue on consecutive nights to Monday before school (but introduced on a graduated basis) and that this will also constitute substantial and significant time under the Act, noting the parties’ additional agreement that the children spend time with the father on the Wednesday night in the off week. These orders will also be reasonably practicable.

7. Evaluating the above section 60CC primary and additional considerations, the Court is of a view that it is in the best interests of the children that they spend time with the father, during school term times, from Thursday after school to Monday before school, each fortnight, (noting the parties have agreed, and the Court has made orders in Exhibit A, that in the off week, the children will spend the Wednesday night with the father), but commencing in a graduated manner as follows:

   (a)From 10 June 2016 to 10 September 2016 the children shall spend time with the father each fortnight from Friday after school (or otherwise 3:30pm if a non-school day) until the commencement of school Monday (or otherwise 9:30am if a non-school day); and

   (b)thereafter, the children shall spend time with the father each fortnight from Thursday after school (or otherwise 3:30 pm if a non-school day) until the commencement of school Monday (or otherwise 9:30am if a non-school day).

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 16 June 2016