Naczek and Dowler (No. 2)
[2009] FamCA 315
•29 April 2009
FAMILY COURT OF AUSTRALIA
| NACZEK & DOWLER (NO. 2) | [2009] FamCA 315 |
| FAMILY LAW – CHILDREN – Time to be spent by father with two children where there is still some uncertainty about his capacity to remain in Australia – Substantial and significant time |
| Family Law Act 1975 (Cth) |
| Eddington & Eddington [2007] FamCA 1299 |
| APPLICANT: | Mr Naczek |
| RESPONDENT: | Ms Dowler |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLF | 1222 | of | 2006 |
| DATE DELIVERED: | 29 April 2009 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | THE HONOURABLE JUSTICE CRONIN |
| HEARING DATE: | By way of written submissions |
SUBMISSIONS RECEIVED FROM
| COUNSEL FOR THE APPLICANT: | MR ST JOHN SC |
| SOLICITOR FOR THE APPLICANT: | WESTMINSTER LAWYERS |
| SOLICITOR FOR THE RESPONDENT: | LANDER & ROGERS |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | VICTORIA LEGAL AID |
Orders
For the purposes of these orders, “the Geelong environs” means an area within a 25 kilometre radius of the Geelong General Post office.
That if the husband is living within the Geelong environs, the children N born … March 1998 and L born … February 2001 live with the husband during school terms, in alternate weeks, commencing on either 7 May 2009 or 14 May 2009 (depending upon whichever is the husband’s next weekend with the children as currently being undertaken), from the conclusion of school on the Thursday until the commencement of school on the following Tuesday morning.
For the purposes of paragraph 2, the husband collect the children from school at the commencement of the period on the Thursday and return them upon the conclusion of the period to school at the commencement of school on the Tuesday.
Paragraph 2 of these orders shall be suspended during all school term holidays, long summer holidays and other special days referred to specifically in these orders and resume thereafter as if it had not been suspended at all by this paragraph.
That to the extent that it is necessary to do so, the husband may provide a copy of these orders to the Principal of the school at which the children attend.
That unless the parties agree in writing otherwise, the husband spend time with the children during one half of all school term holidays hereafter from the conclusion of school on the last day that the children are normally required to attend school until 5 pm on the day which is as close to the mid-point of the holidays as possible.
That the husband spend time with the children for one half of the long summer holidays at times to be agreed and failing agreement, the first half in the holidays that commence in odd-numbered years and the second half in the holidays that commence in even-numbered years.
That for the purposes of calculating one-half of the long summer holidays:
(a)the period 24 December until 26 December (both inclusive) shall be excluded;
(b)the last of day of term shall be excluded and the holidays shall be deemed to commence at 9 am on the first day of the holidays;
(c)the last day of the holidays shall be deemed to be the time 48 hours prior to the morning that the children start term 1.
The husband shall spend time with the children on Fathers’ Day in each year from 10 am to 5 pm.
The husband shall spend time with the children from 11 am on 24 December 2009 until 12 noon on 25 December 2009 and for a similar period in each alternate year thereafter;
The husband shall spend time with the children from 12 noon on 25 December 2010 until 5 pm on 26 December 2010 and for a similar period in each alternate year thereafter.
Any time between the husband and the children shall be suspended during Mothers’ Day in each year from 10 am to 5 pm.
For the purposes of paragraphs 6, 7 ,9, 10 and 11 hereof, the husband shall collect the children from the wife’s residence at the start of the period (except in relation to paragraph 6 which will be at school and paragraph 9 in circumstances where the children are with the husband for the full weekend in any event) and return them to the wife at her residence at the conclusion of the period.
For the purposes of paragraph 12 hereof, if Mothers’ Day falls during the husband’s weekend, he shall return the children to the wife on the morning and collect them from her in the afternoon.
That the children spend time with the wife at all other times not otherwise covered by the orders made on 28 November 2008.
That to the extent that it requires certainty, paragraph 5 (a) of the orders made 28 November 2008 is suspended during any period when the husband is living within the Geelong environs.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the fact sheet attached hereto and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Naczek & Dowler is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLF 1222 of 2006
| MR NACZEK |
Applicant
And
| MS DOWLER |
Respondent
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
Introduction
On 28 November 2008, I made orders and published reasons relating to this difficult and long-running parenting dispute.
Because there had been a change in the husband’s employment, I provided for all parties to make submissions about what time he should spend with the children on an on-going basis. I had earlier rejected an application for the husband to lead further evidence.
The November orders
The orders provided:
That pending further and final submissions based upon the findings and other orders made this day, if the husband is living outside of the Geelong environs, the children spend time with him as follows:
(a)On no less than two occasions and up to a maximum of four occasions per annum for up to three weeks on each occasion and the details of such times shall be agreed at least two months in advance and in accordance with paragraph (11).
(b)Each alternate Christmas commencing in 2009 and each alternate year thereafter to be included in one of the three week periods the children are with the husband.
(c)The husband shall collect the children from and return the children to, the wife’s usual place of residence in Australia;
(d)On any weekend the husband is in Australia from after school Friday to before school Monday, and as otherwise agreed between the parties, upon the husband giving the wife 21 days notice of his intended travel to Australia
That pending further and final submissions based upon the findings and other orders made this day, the husband otherwise communicate with the children as follows:
(e)During school terms by telephone to them at school by arrangement with the school’s principal and upon being so advised of such arrangement, the wife do all things necessary to facilitate the attendance of the children at the appointed time and place;
(f)During school holidays when not with the husband, by the wife organizing the children to telephone the husband at the expense of the husband each Wednesday and Sunday between 5.30pm and 6.30pm Australian time and during such telephone calls, the wife be restrained by inunction from being in the immediate presence of the children or commenting to them whilst they are communicating with their father.
It has taken many months to bring this to conclusion but as there is an appeal pending against my orders, it is important to bring all matters to an end.
For the purposes of the orders I am now making, I rely upon my findings in the reasons for judgment earlier referred to. In addition, I have read the submissions of all parties and will refer to them below.
The submissions
The Independent Children’s Lawyer filed her written submissions on 6 March 2009.
The husband filed his written submissions on 17 March 2009.
The wife did not file her submissions within the time frame I initially ordered but I extended that time until 24 April. The wife filed her submissions on 24 April 2009.
Insofar as any submission related to costs issues, I have not taken them into account.
The issues
Despite the difficulties in this case, when it came to putting proposals for the husband’s time with the children, on the face of the submissions, the parties were not significantly far apart. However, two things need to be said about that:
(a)the husband prefaced his position by saying that he was not able to go outside my findings and that as I had rejected equal shared time, he would start from the presumption that he could not argue that;
(b)the wife maintained that as I had found she was the primary carer of the children, that should continue and the time should be limited to leisure time because the husband’s future residential status in Australia was unknown and I might otherwise be experimenting with the children’s regime with the husband.
My decision is based upon the evidence and the findings I have made and importantly how I see the best interests of these two children.
The husband’s position
The husband’s position was that if he was living in the Geelong environs, he should spend time with the children during school terms from the conclusion of school on Thursday until the commencement of the school day on the following Tuesday on a fortnightly basis. On the basis that most school terms in Victoria are about 10 weeks duration, he was contemplating about 20 blocks per year. During holiday periods, he sought to spend half of the time with the children. In addition, he sought ancillary orders relating to special days, changeover arrangements and the determination of telephone communication.
The wife’s position
The wife’s position on the substantive time issue was that the husband should have the 20 blocks to which I referred but they be limited to the period from the conclusion of school on the Friday until the commencement of school on the following Monday on an alternate week basis.
The wife also sought that the husband have a period from after school until, and including, an evening meal time in the alternate week.
The position of the Independent Children’s Lawyer
The Independent Children’s Lawyer preferred and proposed, a building-up regime commencing with the period from after school on Friday until the commencement of school on the following Tuesday morning until 2010 and that the time be then extended to commence on the Thursday in the way that the husband currently proposed.
The Independent Children’s Lawyer also proposed a variety of orders relating to communication between the parties themselves and communication with professionals.
Outcome
I propose to adopt the husband’s position immediately in relation to the Thursday to Tuesday.
The November 2008 reasons
Commencing from my reasons in November, the matters that follow are those which significantly guide me to find that what orders I will make are in the best interests of these children.
In my substantive reasons, I found that the relationship between the children and both parents was sound. The importance of that is that I find that the children can be away from the wife for periods of time without detriment to their development whilst at the same time knowing that the husband will care for them properly and attend to their needs including their non-school curricular needs.
Even on the wife’s evidence, I found that the husband enjoyed a strong and satisfying relationship with the children. I relied heavily on the independent and expert views of Dr M who was the psychiatrist retained throughout the proceedings. Based upon much of what Dr M said, I was able to conclude that the relationship between N and his father was extremely sound and loving. The same was found in relation to L.
I found there to be a very close and loving relationship between the wife and the children and that they were very much dependent upon her. How much that dependence requires them to be with her rather than with their father is what this current issue is, in part, about. There seems no dispute that there is weekend time occurring between the husband and the children.
Although in his submissions, Senior Counsel for the husband objected to many things said in the submission of the Independent Children’s Lawyer, he did not object to paragraph 26 which said that N was “currently settled” in the “current arrangement” and that change would cause disruption to which N had to adapt. Whilst on any view of the evidence, that must follow, there is no right or wrong time to make a change to which N must adapt. He is currently spending holiday time with his father without trauma as well as the alternate weekends and apparently a limited time in an alternate week. I am not therefore concerned about the capacity of N to adapt to modest changes such as those that I intend to order.
I still have concerns about what I suspected would be the different views about the ways the parents would raise the children but I have given the predominant responsibility to the wife. The husband will no doubt see the sense in endeavouring to keep the stability of the wife’s parenting routines. That is a conclusion based on the finding that I made that “(the) husband will raise the children in an ordered and organised way”.
I also made the finding that Dr M questioned the husband’s understanding of the extent of N’s problems but found that that may have been explained by the absence of face to face contact. Much water has passed under the bridge since the case concluded and nothing has been brought to my attention to suggest that there has not been consistency of the husband’s endeavour to spend time with the children. Even on the limited time that I found the husband had spent with the children which had been dictated by the tyranny of distance and his employment obligations, I still found there to be a commendably close relationship of a face to face nature between the husband and the children. That was evident in the wife’s evidence as well as the evidence of the school.
Importantly, I found that the children wanted to spend time with their father notwithstanding the less dominant parenting role he had fulfilled in their short lives and his physical absence.
My findings were therefore that I could be confident for the purposes of s 60CC (3)(d), the children would not have any adverse effects from being away from either parent for the time that I then contemplated pending these orders. How much more therefore is appropriate to ensure that the objects of s 60B of the Act are fulfilled whilst still ensuring that the orders are in the best interests of these children?
The submssions of the Independent Children’s Lawyer
The Independent Children’s Lawyer’s position was simply that N’s ability to adapt and cope with change would increase with age and maturity and that increases in time should be governed by the children’s counsellor being involved in the planning of those changes. I understand the point but see that it is my responsibility to determine what is best. It must be remembered that I have heard not only the parties but also the psychiatrist who not only gave evidence of his observations but also opined about what was good for children such as N and L. I also had an objective view from a very experienced school teacher who in my view, had a good grip on who these children were and what their development stages were.
The Independent Children’s Lawyer put the essence of change as being a process to be worked through but having regard to the nature of the relationship between the parties, I think it better for the Court to intervene at least whilst the wife’s health position improves. The Independent Children’s Lawyer described the relationship as “toxic” as well as pathological. I think “toxic” might be a description penned to such a set of facts but I found that it was pathological by which I meant that it was caused by the wife’s illness as diagnosed by Dr M. As such, any attempt to have the parents resolve the issues themselves must wait patiently for the wife to be in a position to deal with the husband whilst at the same time for him to contemplate that I found he did not have a strongly supportive view of the wife. Accordingly time must tell whether these children are going to have the benefit of what s 60B(2)(d) expresses, namely that parents should agree about the future parenting of their children.
The husband’s submissions
The husband’s submissions were prepared by Senior Counsel who appeared for him throughout the hearing. It was put that there were numerous positive findings about the husband’s personal qualities and parenting skills.
The husband’s submission drew attention to the following paragraph of my November reasons:
Section 65DAA(2) provides that if I am not to make an equal time order, I have to consider the children spending substantial and significant time with each parent. That too creates difficulty because the definition of substantial and significant time includes time outside of leisure time or weekend time and holiday time. I am satisfied that it would not be in the best interests of the children for that to occur at this stage of their development having regard to all of the matters that I have set out above.
It was submitted that I was not clear about whether that statement related to the husband living outside of the Geelong environs. It was put that if that was the case, to restrict the husband whilst in Geelong would be inconsistent with the nature of his relationship with the children and the positive findings I had made about him as a parent.
My reference to the “stage of their development” related to both the Geelong environs and otherwise but I was also referring to the fact that, depending upon one’s interpretation of “substantial and significant”, I would not have contemplated and still do not now, time close to equal shared time between the parents. That does not mean however that the husband should not still participate in the activities that are referred to in the definition of substantial and significant.
For the purposes of the Act, a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child's daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
In Eddington & Eddington [2007] FamCA 1299, the Full Court (Finn, Coleman & Collier JJ) said:
It is evident that, although orders for time to be spent with a parent fall literally within the provisions of section 65DAA(3)(a)(b) and (c), that does not mean that the orders thereby provide for substantial and significant time within the terms of the legislation. It is equally evident that orders made for time spent cannot satisfy the requirements of substantial and significant time unless they literally meet all of the requirements of those provisions. What constitutes substantial and significant time will vary from case to case. What is substantial and significant time in one factual context may well not be in another. Whatever their terms, orders for substantial and significant time will have in common that they literally comply with each of the requirements created by s 65DAA(3). There is no issue that the orders under consideration did so comply. (emphasis mine)
In my reasons in November, I rejected the concept of substantial and significant time insofar as I was required to contemplate it as part of the legislative pathway. That does not mean that in determining thereafter what is best for these children, I cannot determine an outcome which on its face, appears to have many of the features of substantial and significant time.
The wife’s submissions
The wife’s submission followed the path taken by the Independent Children’s Lawyer. She said that 3 nights and 2 evenings was a “reasonable and appropriate amount of time having regard to the special circumstances of the children and [N’s] special needs by reason of his Autism Spectrum Disorder”. She highlighted my findings about her understanding of those needs. The wife’s capacity and responsibilities are not under challenge here and I do not need to contemplate that further. I am dealing here with what time the children should spend with the husband.
It was put by the wife that introducing a further night now and two more in 2010 risked N’s “continuing satisfactory progress” at school particularly where the husband’s future in Australia will be unknown. I do not accept that there was any evidence or any finding that I made that said that the progress at school was adversely affected by the involvement of the husband in the schooling routine. I accept there is no evidence about what the husband will do in the future but the orders I am proposing are predicated upon him living in the Geelong environs in circumstances where he will have consistency of care. If it be that he has to leave the country or cannot fulfil the orders I propose, the wife will be at liberty to seek to vary them. I am working on the basis that the number of contact periods for any one year is about 20 and at such, the number of nights in those periods I am contemplating is modest in the lives of these children. I reject therefore the suggestion that I am experimenting with a regime which is premature. The children have now had considerable time to settle in their Geelong environs with the wife and, the husband, as I understand the position put by all parties, has been having consistent time for months. That time however has been confined to leisure activity time. As Dr M indicated, N would adjust to a new routine but it depended upon how the parents addressed it. It behoves both parents to make this work by ensuring that there is consistency of routine and discipline so that both children are not bewildered and confused not knowing what they are supposed to be doing. I appreciate that the parents do not have a relationship but they have to work out a form of communication because they each have equal shared parental responsibility.
I have already made provisions for what will occur if the husband cannot remain in Australia and I see no reason to revisit that despite the submission of the wife that I ought not venture into expanding the time currently spent by the husband until his visa status is known. It may very well be that his status may be affected or influenced by my orders. I am not concerned with that as much as what is the appropriate level of contact for the children. If the husband cannot remain living in the Geelong environs, little disruption will have occurred for the reasons I have just said. In that case, my existing orders will cover the future.
In my view, it is important and for the best interests of these children that their father has time with them that has all of the definitional attributes of substantial and significant time in any event without it adversely affecting the quality of the time that they spend with their mother.
The best interest of the children
Thus, putting all of my findings together and contemplating the various submissions of the parties, I find that it is in the best interests of the children that they spend time with their father if he is living in the Geelong environs:
(a)each alternate week from Thursday after school until the commencement of school on the following Tuesday morning; and regardless of where he is living;
(b)for one half of all school holidays.
I propose to make those orders and some ancillary orders because:
(a)the children have a good relationship with the husband;
(b)the husband has the requisite parenting skills to provide for the children during those periods;
(c)the husband has demonstrated a desire to fulfil the requisite role;
(d)the children should adapt to the period away from their mother’s environment without difficulty;
N in particular has some difficulty adapting to change but on the evidence, has shown no discomfort about going with his father for extended holiday and leisure activities. Provided, as I so find, the husband can get the children to school, appointments and extra-curricular activities within the time allocated to him, it can only benefit N by having that stability in his life to the extent that he knows and looks forward to his father collecting him and taking him to those activities;
Both of the children have the right to spend time with their father in which he actively participates in their daily routines including school attendances, extra-curricular activities and appointments relating to their health and wellbeing as well as being with them for occasions and events that are of particular significance to them. Similarly, the children have a right to spend time with their father involved in occasions and events that are of special significance to him. Sometimes those events cannot be undertaken in a leisure environment.
Ancillary orders
In relation to school holidays, I accept what the wife says about the need to give the children an opportunity to settle after a good break and resume school. She should have the responsibility to settle them before they resume the school term.
In relation to changing over the children, the only time there will be a problem which the parties will have to face is where changeovers occur other than at school. I see no reason why the husband should not do all of the collection and return because the wife bears the greater burden of daily responsibilities otherwise. The collection and return can be outside of the wife’s residence provided it remains in the current Geelong environs.
I have noted the wife’s submission that she hopes that the husband might join her in taking steps towards improving the co-parent relationship. In my view, that is something that both parties will need to contemplate but it is inappropriate for me to order it at the moment. If the parties cannot see that their on-going inability to communicate is not creating confusion and problems for the children, they are unlikely to change in the future. I do not propose to make orders about the parents attending therapy, counselling or mediation.
I will make orders relating to Mothers’ Day and Fathers’ Day along with the Christmas period only because I have some concern that those will raise their heads if I do not.
I also agree with the definition of the husband as to the Geelong environs. 25 kilometres is an appropriate radius which would enable the children not to have travel excessively before school starts.
I do not propose to make orders about telephone arrangements as suggested by the husband relating to the birthdays of the children. I would hope that that problem can be resolved between the parties themselves in due course but until that happens, the current arrangements which seem to have worked well can continue.
I certify that the preceding Forty Nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin
Associate:
Date: 29 April 2009
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