Newman and Newman
[2010] FMCAfam 313
•16 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NEWMAN & NEWMAN | [2010] FMCAfam 313 |
| FAMILY LAW – Equal shared parental responsibility – Equal time – insufficient certainty as to parents and children’s future circumstances to make a defined order as to which school the children should attend. |
| Family Law Act 1975, ss.60 CC (2), (3) (4) |
| Applicant: | MS NEWMAN |
| Respondent: | MR NEWMAN |
| File Number: | PAC 2765 of 2009 |
| Judgment of: | Dunkley FM |
| Hearing date: | 15 March 2010 |
| Date of Last Submission: | 15 March 2010 |
| Delivered at: | Parramatta |
| Delivered on: | 16 April 2010 |
REPRESENTATION
| Applicant Mother in Person |
| Counsel for the Respondent: | Ms Gillies |
| Solicitors for the Respondent: | Marsdens Law Group |
ORDERS
All previous parenting Orders be discharged.
The parties shall have equal shared parental responsibility for the children, X, born (omitted) 2006 and Y born (omitted) 2008 subject to Order 3.
The children shall be enrolled at and attend a school as agreed by the parties and failing agreement, as selected by the Mother.
The children shall live with the Father:
(a)During school term time in:
(i)Week One from 8am Wednesday to 8am Friday, commencing in the first week of each school term and each alternate week thereafter; and
(ii)Week Two from 8am Wednesday to 5pm Monday, commencing in the second week of each school term and each alternate week thereafter;
(b)On Father’s Day, if that is not already a period that they are spending with the Father, from 9am to 5pm;
(c)On each of the children’s birthdays, if they are not already spending time with the Father for a period of three hours, from 4pm to 7pm;
(d)From 10am Good Friday to 5pm Easter Sunday in each year ending in an even number and from 5pm Easter Saturday to 5pm Easter Monday in each year ending in an odd number;
(e)From 9am Christmas Eve to 12noon Christmas Day in each year ending in an odd number and from 12noon Christmas Day to 5pm Boxing Day in each year ending in an even number;
(f)For the first half of each of the school holidays at the end of Term One, Two and Three, subject to the order for the Easter period as set out above;
(g)For the 2010/2011 and 2011/2012 Term 4 school holiday for a ten day block period as nominated by the Father, provided that not less than 28 days written notice is given to the Mother. Subject to orders 5(e) and 5(g) the remainder of the holiday to be divided equally by agreement;
(h)Commencing 2012/2013 and each year thereafter, for the first half of the Term 4 school holidays, subject to order 5 (e);
(i)For a period of two hours on the Father’s birthday as agreed and failing agreement from 5pm to 7pm; and
(j)At such other times as the parties agree.
The children shall live with the Mother:
(a)During school term time in:
(i)Week One from 8am Friday to 8am Wednesday commencing in the first week of each school term and each alternate week thereafter; and
(ii)Week Two from 5pm Monday to 8am Wednesday, commencing in the second week of each school term and each alternate week thereafter;
(b)On Mother’s Day, if that is not already a period that they are spending with the Mother, from 9am to 5pm;
(c)On each of the children’s birthdays, if they are not already spending time with the Mother for a period of three hours, from 4pm to 7pm;
(d)From 10am Good Friday to 5pm Easter Sunday in each year ending in an odd number and from 5pm Easter Saturday to 5pm Easter Monday in each year ending in an even number;
(e)From 9am Christmas Eve to 12noon Christmas Day in each year ending in an even number and from 12noon Christmas Day to 5pm Boxing Day in each year ending in an odd number;
(f)For the second half of each of the school holidays at the end of Term One, Two and Three, subject to the order for the Easter period as set out above;
(g)For the 2010/2011 and 2011/2012 long term school holiday for a ten day block period as nominated by the Mother, provided that not less than 28 days written notice is given to the Father. Subject to orders 4 (e) and 4 (g), the remainder of the holiday period to be divided equally;
(h)Commencing 2012/2013 and each year thereafter, for the second half of the long terms school holidays subject to Order 4 (e);
(i)For a period of two hours on the Mother’s birthday as agreed and failing agreement from 5pm to 7pm;
(j)From 9am 19 April 2010 until 8am 21 April 2010; and
(k)At such other times as the parties agree.
Each party shall advise the other party as soon as reasonably practicable of any major medical issues involving the children when the children are in that parties care and shall keep the other party properly informed of any required treatment or medication in relation to the children and shall authorise the provider of that treatment to discuss that treatment with the other party.
Each party shall keep the other advised of their current residential address, landline telephone number, mobile telephone number and email address.
Each party shall notify the other party of the address and contact telephone number for the children during any school holiday period if the children are not staying at the parent’s usual place of residence.
The parent with whom the children are living with at any period shall place a telephone call to the other parents landline between 5pm and 7pm each day and shall do all that they can to encourage the children to have telephone communication with the other parent.
Nether parent shall denigrate the other parent or any member of the other parents household in the presence or hearing of the children and shall cause the children to be removed from the presence or hearing of any other person who engages in such denigrating behaviour.
Each parent shall authorise any day-care provider or school at which the children are enrolled to discus with the other parent the children’s attendance, attainments and development.
Each party shall be entitled to attend at any day-care provider or school at which the children are enrolled so as to participate in events at which parents are entitled to attend.
Apart from school enrolment, and not including any existing day-care or preschool enrolment, neither party shall enrol or register the children in any activity which will affect the time that the children spend with the other parent, without that parent’s written consent.
Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders is set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Newman & Newman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2765 of 2009
| MS NEWMAN |
Applicant
And
| MR NEWMAN |
Respondent
REASONS FOR JUDGMENT
At the commencement of the hearing the parties agreed that there should be orders:
a)For equal shared parental responsibility relating to their children X, aged four and a half and Y aged two;
b)That the children should spend equal time with both parents;
c)That the children’s time at Easter should be equal and alternating from year to year, being Good Friday to Easter Saturday in one year and Easter Sunday to Easter Monday in the other year;
d)That each parent should have equal periods during the short school holidays with the children;
e)That each parent have a longer period with the children in the Term Four school holidays, provided adequate written notice was given, but that that period should be no longer than two weeks until X had commenced Kindergarten; and
f)That each party have some period at Christmas, on the children’s birthdays, on the occasion of Mother’s Day and Father’s Day and on the occasions of the parties’ birthdays with the children.
Issues
What was in dispute was the following:
a)The specific details for the above agreement;
b)The school that the children should attend when they attained school age.
Parties Proposals
Mother
It was the Mother’s case that:
a)During school term the children should live with the Father:
i)In Week One from 8am Wednesday to 8am Saturday;
ii)In Week Two from 9am Thursday to 9am Monday;
b)The children should be enrolled to attend (omitted) School, a state education school;
c)The arrangements for the children to spend time with the parents at Christmas should occur from 9am on Christmas Eve to 11am Christmas Day for one parent and from 11am Christmas Day to 5pm Boxing Day for the other parent and that those periods should be reversed in the alternate year.
Father
The Father proposed the following:
a)The children should live with him:
i)In Week One from 8am Wednesday to 8am Friday;
ii)In Week Two from 8am Wednesday to 5pm Monday;
b)The children should spend time with him for half of each school holidays subject to an exception for Christmas and Easter;
c)The children should be enrolled to attend (omitted) Primary School, (omitted), a catholic education school;
d)With respect to Christmas the children should spend time with him from 5pm Christmas Eve to 5pm Boxing Day each alternate year.
Background
(omitted) 1975 Father born
(omitted) 1983 Mother born
August 2004 Parties start living together
(omitted) 2005 Parties marry
(omitted) 2006 X born
(omitted) 2008 Y born
3 May 2009 Parties separate
Evidence
Apart from the above background, there is little in the parties’ affidavit material that is of any assistance in determining the issues that remained unresolved at the commencement of the hearing. This was conceded by the parties.
As a consequence each of the parties was permitted to give brief evidence in chief in support of their proposals.
The Mother was unrepresented at the hearing. The Mother’s former solicitors had been assisting her until as late as the Friday before the commencement of the hearing in negotiating. It was as a result of these negotiations that the parties’ proposals were so close at the commencement of the hearing.
Each of the parties had the Family Report for consideration for some time prior to the commencement of the hearing. It was this consideration that had enabled them to resolve in principle, if not in detail, most of the major issues. As a consequence, neither party sought to cross examine the Family Report writer.
Mother
The Mother asserted that her proposal was based on the premise of fairness and equality. She said that her proposal represented an equal number of days and an equal number of nights for the children in each of their parents’ households.
The Mother works as a (omitted) three days a week, on Monday from 10am to 4pm, on Wednesday from 10am to 4pm and on Friday from 9am to 4pm, except for the Friday when she collects the children from school, when she finishes earlier. The Mother was adamant that her work days and her work hours could be varied by agreement with her employer.
The Mother and the children, when they are in her care, live with her Mother at (omitted) School, in a home owned by her mother. It is a three bedroom home. There are no other occupants. Her Mother occupies one bedroom, X has her own bedroom and the Mother and Y share a bedroom.
The Mother conceded that she would not live with her Mother forever. She conceded that if the Father’s application was successful, especially with regard to the children’s schooling she might consider moving closer to his home in (omitted).
X currently attends day-care, whilst in the Father’s care but not whilst in the Mother’s care. X is due to commence kindergarten in 2012. X has a bowel condition that is treated by a generic laxative when necessary. As a consequence of a bowel problem she needs a diet high in fruit, juice and grains.
Y’s health is good.
Neither child has any diagnosed learning disabilities.
The Mother stated that when the children are in her care, she engages them in art and craft activities and in play in the big backyard at her mother’s home which contains a sandpit, swings and has an area sufficient for bike riding. The garage is converted to a play room.
The Mother asserted that the travel time between the parties’ homes was approximately forty to fifty minutes. The driving time from (omitted) School to the proposed school, (omitted) Primary School was of a similar duration. The Mother stated that the children could walk from her mother’s home to (omitted) School in about five minutes.
The Mother had until the separation, lived in the (omitted) area. She said her mother has had a significant role in the children’s lives and was able to assist her if required in her care of the children. The Mother acknowledged that she had done no research as to the various merits of the proposed school, as she was of the opinion that it was too soon to undertake that research as the parties circumstances could change between now and X’s school commencement.
Father
The Father is a (omitted) of a private company controlled by himself and his business partner. That company manages (omitted). The Father stated that his work is primarily undertaken from home. In the periods that the children are not in his care, he meets with suppliers for negotiations. He gave evidence that his proposal would best meet the needs of X, having regard to her day-care, which she attends currently every Wednesday and alternate Mondays and her dancing class which she attends on Thursdays. He enrolled her in both day-care and dance class without the mother’s consent.
The Father lives in a house owned by a trust. His business partner controls that trust. The Father conceded that the trustee could sell that home at any time without reference to him.
The Father conceded that his motor vehicle has recently been repossessed and that there is a debt owing. He denied that there is any financial instability with respect to the business. He conceded he enrolled the children in day-care having regard to discussions that he had with the writer of the family report and that enrolment was undertaken without consultation with the Mother.
The Father asserted that if the children are to attend (omitted) Primary School, their enrolment forms need to be lodged by approximately March 2011.
On the Father’s behalf there were tendered pages from the (omitted) website relating to (omitted) Primary School and (omitted) School.[1] He asserted that the facilities at (omitted) School’s were superior to those at (omitted) School and that the students at (omitted) School’s had done better at the NAPLAN tests than the children at (omitted) School.
[1] Exhibit A – Pages downloaded from (omitted) Website relating to (omitted) School and (omitted) Primary School.
The material tendered from the (omitted) website confirmed his contentions.
The Father said that if he required assistance, his sister lived in a nearby suburb. She is currently on maternity leave and is able to assist, whilst she is on leave. There is no evidence as to when this leave would end. There was no evidence as to her availability once her leave ended.
Determination
The parties have agreed to an equal shared parental responsibility order. It is recommended in the Family Report. It is in the best interests of the children. It is practically possible, not withstanding the distance between the parties’ homes and the travel that the children will be involved in. The parties’ communication is sufficient to enable such an arrangement to work.
There are no issues of family violence. Accordingly, an equal shared parental responsibility order, as sought by the parties, will be made.
Both parties say that there should be an order for equal time. To make such an order, it has to be in the best interests of the children. The parties assert that it is. There is no evidence that would cause a contrary conclusion to be reached.
In determining the definition of such an order, that determination should have as its paramount consideration, the bests interests of the children.
There is effectively so little difference between the proposals for weekly time that the decision if largely inconsequential. However, the proposal made by the Father enables X to continue at her day-care when with the Father. This has the benefit of increasing her socialisation and of making her school ready. Both of these factors are important given X’s age. It also has the benefit of each of the parents having a full weekend with the children each fortnight. It’s common start date of Wednesday’s means it has the potential of being less confusing for X. Given the children’s ages, being four years and two years at the date of judgement, the proposal by the Father that the children spend half of the longer school holidays with him commencing immediately would mean that the children would be separated from each of their parents, both significant adults to them, for a period that is too long if that arrangement were to start immediately.
By the time of the Term 4 school holidays in December 2010/January 2011, the children will have had significant experience of the equal time arrangement, including one week periods in each of the June/July and September/October school holidays. An expansion at that time to ten day periods in the longer school period will, therefore, be manageable for the children having regard to their attachments to each of their parents. Such a regime should continue until the long school period in 2012/2013, by which time the children should be old enough to sustain a three week absence from their parent.
The Mother’s proposal regarding Christmas enables the children to have the benefit of spending some part of Christmas Day with each of their parents. This is a desirable outcome as Christmas will assume more and more significance for the children as a result of inputs they receive from their day care, the school and society in general. For them to miss out each second year, in spending time with both of their parents on such a significant day, is not in their best interests. A changeover time of twelve noon, will enable a “more leisured” experience for the children, of that excitement of present opening and exploration of new and gifts. This will also enable the other parent to experience a Christmas lunch and relaxed afternoon.
The issue of the school that the children should be enrolled in is not without its difficulties. Indeed there is much to support the Mother’s contention that decision at this time is premature. However, to avoid the potential further litigation, a decision at this time is warranted. The Mother’s proposal that the children attend (omitted) School if she is still living with her mother is the more attractive proposal, having regard to the children’s best interests. It is close to her home and her workplace. It will enable her or her mother to collect the children in cases of emergency. On the available evidence, I conclude that the children have a closer relationship with their maternal grandmother than they do with their paternal aunt. Indeed, the maternal aunty may, by 2012, be back in the workplace and be unable to provide the assistance that the Father hopes she could. The NAPLAN results of the proposed schools are not so different as to justify one school being chosen over and above the other. There is no certainty that either parent will be living where they currently reside.
A defined order that the children attend (omitted) School will not be made, so as to accommodate changes in the parties’ circumstances. Rather an order will be made that if the parties cannot agree as to the children’s education that shall be a decision determined by the Mother, thereby resolving any need for further litigation. In doing so I recognise that it is more probable than not, the children will attend (omitted) School.
Conclusion
It is to be hoped that having put this litigation behind them, the parties will be able to focus on the joint parenting of their children, without the need for further litigation. Such a result, would indeed, be in the best interests of the children.
I am confident given the child focused nature of each of the parents, that such an outcome is possible, and accordingly make the orders as set out earlier.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Dunkley FM
Date: 16 April 2010
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