Newarke and Lathwell (No.2)

[2013] FamCA 1053

FAMILY COURT OF AUSTRALIA

NEWARKE & LATHWELL (NO.2) [2013] FamCA 1053

FAMILY LAW – CHILDREN – Interim Parenting – Where orders were previously made varying the interim arrangements with respect to the time that the children spend with the father – Where the mother raised concerns that such variation has adversely affected the sleep patterns of the youngest child of the parties – Consideration of the best interests of the child – Where the court determined that the extended time the youngest child of the parties spends with the father is important in establishing and maintaining a meaningful relationship with the father – Where the court declined to vary the orders previously made.

Family Law Act 1975 (Cth)

APPLICANT: Mr Newarke

RESPONDENT: Ms Lathwell

INDEPENDENT CHILDREN’S LAWYER: Legal Aid New SouthWales

FILE NUMBER: SYC 5103 of 2012

DATE DELIVERED: 18 November 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 18 November 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Biddulph & Salenger

SOLICITOR FOR THE RESPONDENT: Fox & Staniland Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Power

Orders

1. That I decline to vary the previous parenting orders made.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Newarke & Lathwell (No.2) 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 SYDNEY

FILE NUMBER: SYC 5103  of 2012

Mr Newarke

Applicant

And

Ms Lathwell

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons were delivered orally.

2. On 23 October 2013 I varied interim orders that were made on 7 December 2012 in relation to the time the children spend with their father.

3. I ordered that for the first three Sundays of each month the children spend time with their father from 9 am until 6 pm with such time to be supervised by the father’s partner Ms F.

4. There were concerns, at the time I made that order, about the father’s capacity to look after all of the children and in particular D (who is referred to as ‘D’ by the parties and shall be referred to as ‘D’ in this judgment) who both parties agree is a high needs child.  It was the evidence of the mother that D has a daily nap commencing at 1.30 pm and sleeps for a minimum of two hours sometimes up to three hours and that she follows this sleep routine very closely. 

5. The mother says that if this regime is not followed she will not sleep.  The mother sets out in her affidavit very specific sleep requirements.  The order that I made on 23 October 2013 was that the first three visits from the time between 1 pm until 4 pm be supervised by G Group and that G Group provide a report in relation to that time.  Those reports are now available and I will refer to them in a moment. 

6. After the first Sunday which was 3 November 2013 the mother said that D returned looking tired her lips were dry and red and her nose was runny and her eyes looked very tired.  The following morning D attended her ballet class between 10 am and 11 am but then the mother was advised by the au pair that D was too tired to go to her psychomotor class between 11.30 am and 12.30 pm.  D went down for her day time sleep about an hour earlier than usual.  That day D appeared to the mother to be run down, distressed and tired and went to bed early that night.  She remained run down for the remainder of the week and had a fever. 

7. After the return from the next visit on Sunday both children were observed by the mother to be run down and tired and went to bed a little earlier.  The next day D looked tired and run down and had lower energy levels for the next few days.

8. Again the mother’s evidence is that on 17 November 2013 D returned looking run down and tired. 

9. The mother is concerned that the nine hour block on Sundays is too long and should be replaced by two shorter blocks so that the mother is able to put D to sleep herself ensuring that she gets her sleep. 

10. The three G Group reports are in evidence.  They demonstrate that on each of the three Sundays at issue D was put down for sleep but did not sleep on each of those occasions. 

11. The summary of the visit on 3 November 2013 said that both children seemed to receive equal attention from all family members, “the visit seemed to pass in a happy and relaxed atmosphere”.  The report indicates that the mother asked the supervisor if the children had slept to which the supervisor replied they had not but they had rested.  The mother then expressed concern that D looked tired pointing out she could see circles around her eyes which would indicate she was tired.  The report continues, “[s]upervisor reassured [Ms Lathwell] that [D] had at no stage become distressed or upset but remained calm and happy throughout the visit”.

12. Again on 11 November 2013 the supervisor advised the mother that the children had not slept but had rested. 

13. Once again on the third visit on 17 November 2013 D did not sleep.  The summary of the visit is as follows:

    Overall the visit seemed to pass in a spirit of cooperation, happiness and harmony.  Despite [D] not resting in the afternoon she maintained her good humour while [C] appeared happy and relaxed throughout.  Both children seemed cheerful and settled in the company of their father and [Ms F] and seemed to enjoy the interactions with each other.

14. It is not suggested by the mother that the children and particularly D are not enjoying the time with their father rather she submits that it is more important for D to have a sleep during the day rather than spend the time with her father in one block. 

15. The question is what is in the best interests of the child.  The evidence of the G Group report truly establishes that all of the children including D are getting a benefit from seeing their father from 9 am until 6 pm on three Sundays each month.  It is true that D is not sleeping.  I accept the father’s submissions that this is not entirely surprising as she is a high needs child and may need time to adjust to her new sleeping environment.  Even so the fact remains that the independent supervisor regarded D as being rested on each of the three occasions.

Conclusion

1. It would not be entirely surprising that a three year old such as D would not be tired at the end of a nine hour day with her father where she had what was variously described in submissions as a lovely or fabulous time.  If the consequence of that is that she is somewhat tired, that she has to go to bed early and that she might have to miss her ballet class or psycho-motor class the following day, so be it.

2. It seems to me the interests of D spending that significant time with her father is more important and if a balance has to be struck in favour of those matters the balance should be struck in favour of her relationship with her father.  It seems to me that the extended time is very important time to her in establishing and maintaining a meaningful relationship with her father and I decline to vary the orders.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 18 November 2013

Legal Associate: 

Date:  7 January 2014