Noble-Tabberner and Tabberner

[2007] FamCA 430

FAMILY COURT OF AUSTRALIA

NOBLE-TABBERNER & TABBERNER [2007] FamCA 430

FAMILY LAW - CHILDREN - Interim orders - Variation - Time to be spent with each of the parties

Family Law Act 1975 (Cth)

Goode and Goode (2006) FLC 93-286

APPLICANT: Ms Noble-Tabberner

RESPONDENT: Mr Tabberner

FILE NUMBER: SYF 3843 of 2006

DATE DELIVERED: 11 April 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 5 April 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R Lethbridge SC

SOLICITOR FOR THE APPLICANT: Etheringtons

COUNSEL FOR THE RESPONDENT: Mr C Simpson SC

SOLICITOR FOR THE RESPONDENT: Stacks Family Law

Orders

1. That Order 1.2 made 15 November 2006 is varied in that the words “from 6.00pm Sunday” be omitted and in lieu thereof the words “from the conclusion of school or pre-school on Monday” be substituted.

2. That the parties may arrange for the three children of the marriage to spend alternative or other periods with each of them as they may agree from time to time.

3. That each of the parties may communicate by telephone with the three children of the marriage or any of them at all reasonable times.

4. That all other pending applications of either of the parties for interim parenting orders are dismissed.

FAMILY COURT OF AUSTRALIA AT SYDNEY

File number:  SYF3843 of 2006

MS NOBLE-TABBERNER

Applicant

And

MR TABBERNER

Respondent

REASONS FOR JUDGMENT

Introduction

1. In these proceedings the applicant, Ms Noble-Tabberner (who for convenience I shall call “the wife”) seeks a review of the interim parenting orders made by Judicial Registrar Loughnan on 15 November 2006 (hereinafter referred to as “the orders”).

2. The respondent, Mr Tabberner (who for convenience I shall call “the husband”) seeks an order that the wife's application for review be dismissed.

3. The orders provided that the three children of the marriage (who I shall refer to as “the three children”) live with the husband in a fortnightly cycle being:

   (a)Week one:  9.00am Saturday to the commencement of school or pre-school on the following Tuesday.

   (b)Week two:  6.00pm Sunday to the commencement of school or pre‑school on the following Wednesday.

4. The orders also provided that:

   (a)the three children live with the husband for half of the school holidays which shall include each alternate week in the Christmas school holidays and from 9.00am Christmas Eve to 2.00pm Christmas Day;

   (b)the three children live with the wife at all other times.

5. The wife seeks orders that the three children live with her other than on alternate weekends and other periods as sought in her Response filed 12 November 2006.

6. The hearing was a truncated one following the conventional procedure of submissions being made based on the papers. No application was made to cross-examine any of the parties or their witnesses.

Historical background

1. The following are brief relevant historical matters.

2. The parties and the three children live in the P area.

3. The wife lives with the three children in rented premises in P, whilst the husband and the three children (when they are with him) live on a rural property know as “[T]” which was the former matrimonial home.

4. The parties commenced to cohabit in November 1984 and subsequently married in August 2002.  They initially separated in the period January to September 1991 and finally separated in October 2004.

5. The three children remained living with the wife.  At that time the three children were then aged 6 and 2½ years.

6. The husband is 45 years of age and his occupation is that of company director.

7. The wife is 44 years of age.  The wife is engaged in home duties.

8. There is another child referred to in the proceedings, namely S (at times referred to as “[S]”) who is 4 years of age having been born in October 2002.  S is the child born of a woman with whom the husband had had a long intimate relationship, Ms F who disappeared in November 2003.  It was subsequently established that Ms F had died and Mr H was charged and ultimately convicted in April 2006 with her murder.

Relevant legal principles pursuant to the family law act 1975 as amended

1. The relevant legal principles pursuant to the Family Law Act 1975 (as amended) (“the Act”) and the subject of a recent Full Court judgment given in Goode and Goode[1] as follows.

   [1] Goode and Goode (2006) FLC 93-286

2. Section 60CA of the Act makes it clear that in deciding whether or not to make a parenting order in relation to a child a Court must regard the best interests of the child as the paramount consideration.  That provision is re-emphasised in s65AA.

3. For the purpose of determining what is in the child's best interests, I am required to consider the matters in ss60CC(2) and (3).

4. In the course of doing so I should also consider the matters in s60B which set out the objects of the provisions of Part VII of the Act in relation to the child and the principles that underlie those objects.

5. In substance, they include the benefit to the child of its parents having a meaningful involvement in their lives to the maximum extent, consistent with the best interests of the child.

6. Protection of children from physical or psychological harm as a result of being subjected to or exposed to abuse, neglect or family violence and ensuring that children receive adequate and proper parenting to assist them achieving their full potential and ensuring parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.

7. The principles underlying those objects in summary include a child having the right to know and be cared for by both parents;  a child having a right to spend time with and communicate with both parents and other significant persons on a regular basis;  the joint sharing by parents of duties and responsibilities in relation to their child;  the imperative for parties to agree about future parenting of a child and the child's right to enjoy their culture, including with others who share that culture.

8. It is important to note that s60B(2) provides an important exception to the principles underlying the objects to which I have referred.  That exception is, when it is or would be contrary to a child's best interest.

9. To that extent, the recent legislative amendments in the Act in relation to a child continue what has sometimes been described as the overarching principle, namely, that the best interests of a child is the paramount consideration and the finding of fact in that regard that is required for the purpose of making a parenting order.

10. I am then required to evaluate all relevant issues and the facts in relation to the same in order to reach a conclusion which is in the best interests of the child, the subject of the proceedings.

11. As the judgment in Goode and Goode emphasised the provisions of the Act referred to in that judgment apply to both interim parenting proceedings and proceedings in which final orders are sought.

12. There is no issue that the presumption of equal shared parental responsibility shall apply in accordance with s61DA.

13. Neither party sought an order that reflected that presumption.

Relevant matters pursuant to s60CC

1. Section 60CC(1) makes it clear that for the purpose of determining what is in the child's best interests I am required to consider what are described as primary considerations, as well as additional considerations.

2. The primary considerations are:

   (a)The benefit to the child of having a meaningful relationship with both of the child's parents.

   (b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

3. For the purpose of the first primary consideration it is necessary to make the following relevant findings of fact without which the conclusions which must be reached cannot be achieved.

4. Those findings are in relation to one or more of the discrete matters that are described as additional considerations.

5. Fortunately, for the three children the second primary consideration is not relevant in these proceedings.

Views expressed by the three children and other relevant factors

1. So far as views are concerned, it is clear from the loving relationship that the three children have with the parties that inferentially they have a view to spend time with each of the parties.

The nature of the relationship of the three children with each of the parties and other persons

1. It is common ground that the three children have a loving relationship with each of the parties.

2. It does not seem to be disputed that they also have a fond relationship with the paternal grandparents and maternal grandmother.

The willingness and ability of each of the parties to facilitate and encourage a close and continuing relationship between the three children and the other party

1. The wife has demonstrated a willing and flexible ability to facilitate and encourage a close and continuing relationship between the three children and the husband since the parties separated.  In that regard, she has frequently met the husband's requirements for changes in arrangements for time for the three children to spend with him at his request, often at short notice.

2. The husband has generally appeared to play a constructive role in a co‑operative relationship with the wife since the separation for the purpose of shared parenting arrangements being made between them.

The likely effect of any changes in the three children’s circumstances including the likely effect on each of them of separation from the wife or any other person with whom the three children have been living

1. So far as the likely effect of any change in the circumstances for the three children, including separation from the parties and S, I make the following findings.

2. At the time when the parties separated the three children were 6 and 2 ½ years of age.  The three children are now 8 and 5 years of age.  S was not quite 2 years of age.

3. The three children have been primarily cared for by the wife since that time, subject to short periods of time spent by them with the husband.

4. S was primarily cared for by the husband with assistance from a housekeeper.

5. Each of the parties has given evidence in relation to the pattern of time spent by the three children with the husband since the parties finally separated on 7 October 2004.

6. In essence, for the period from separation to October 2005, B spent one, sometimes two, nights per week in three out of four weeks with the husband;  and the twins spent one night per week, sometimes more, in three or four weeks with the husband.  The parties shared a weekend on the fourth week which included family outings or members of the family simply being together.  The wife also looked after the three children at the former matrimonial home whilst the husband worked on the property or he had one or two children for shorter periods during that particular weekend.  S was with the wife for two nights a week, otherwise with the husband with assistance that he had from a nanny.

7. Variations took place from time to time of these arrangements at the husband's request due to work commitments and issues that he needed to deal with, involving the Australian Taxation Office and the securities regulator.

8. As at October 2005 a draft schedule was prepared and furnished by the wife to the husband regarding periods of time that were suggested be spent by the three children with the husband.  It appeared that in accordance with that schedule, essentially the part or whole of weekends were spent by B with the husband and lesser periods with the twins, but including the continuation of the "shared" weekend to which earlier reference has been made.

9. On occasions, the three children, or one or other of them, spent Monday at particular times with the husband as well.  Variations again took place to that schedule or pattern, usually at the request of the husband, resulting in less time spent by the three children with him.

10. In May 2006 arrangements seemed to be crystallised on the basis that B spent from 12 noon Saturday to 9.00am Monday in each alternate weekend with the husband, as well as 5.00pm Sunday to 6.00pm Monday in each alternate or other weekend.  The two other children spent time with the husband in each alternate weekend from 3.30pm Friday to 5.00pm Sunday as well as a similar time to B on the other weekend.

11. Then from early August 2006 B spent time with the husband on occasions in the alternate week from after school Tuesday until 5.00pm that day.  Flexibility continued to be the theme so far as co-operative arrangements between the parties were concerned in that there were variations from time to time to the arrangements to which I have referred, almost invariably at the request of the husband.

12. Following orders made on 15 November 2006 the parties have followed the arrangements for periods of time that the three children spend with each of them as set down or as laid out in those orders.

13. The wife has pointed to difficulties that have emerged so far as the three children are concerned, pursuant to orders made on 15 November 2006.

14. The wife contends that B has sought increased physical affection from her and has become somewhat introverted.  B and G have also shown themselves to be temperamental to a degree that was not previously experienced.  Generally speaking, the wife contends there has been a decline in the behaviour of the three children and that they have resisted in different ways leaving the wife to spend periods of time with the husband.  Of concern has been that C has been wetting himself.

15. The husband, for his part, gives evidence of the manner in which the periods of time have been spent by the three children with him and their general behaviour.

16. The husband's evidence is that the three children and S have a very fond relationship and play well together.  The three children have engaged in a range of activities and entertainment.  They have also benefited from involvement with the paternal grandparents who have also assisted the husband with domestic work.

17. The husband noted that G has had behavioural problems which have now lessened due to the time that the husband has been spending with him.

18. It is not open to me to make findings in relation to matters of controversy, unless such findings are available to me as can be reasonably inferred from other uncontested evidence.

19. There is no question that the wife has been a dedicated parent to the three children and provided parental care to S in very difficult circumstances.  That has been shown on a historical basis due to the pressures that the parties have experienced as a result of the husband's need to spend time in Sydney to attend to business activities, business pressures with which he has had to contend, issues involving the Australian Taxation Office and the securities regulator and criminal proceedings following the death of S mother Ms F.

20. The wife, throughout all of those trying events, has shown herself to be a parent who is completely child focussed and has done her best to maintain the relationship between the three children with the husband and S at a time of considerable personal inconvenience.

21. As a result, I have concluded that generally the wife’s evidence should be accepted by me that the three children have shown concerning aspects of their behaviour since the orders were made with the features of that behaviour as described in her affidavit evidence.

22. At the same time, the three children have enjoyed a range of activities and attachment that the husband has provided, including maintaining their close relationship with S.

The capacity of each of the parties and any other person to provide for the needs of the child including emotional and intellectual needs

1. It is clear that each of the parties has the capacity to provide for all of the needs of the three children and has shown an appropriate responsible parental attitude.

Any other relevant fact or circumstance

1. No other matters appear to be relevant.  Indeed, submissions in substance made by senior counsel were not directed to other matters.

Conclusion

1. I have determined that it is in the best interests of the three children to make interim parenting orders which vary the orders by changing the start of the period that the three children spend with the husband in week two from 6.00pm Sunday to after school or pre-school on Monday.

2. My reasons are as follows.

3. The three children are still young being aged 8 and 5 years.

4. They have been in the primary care of the wife for most of each week since the parties separated with very limited periods spent with the husband up to the time that the orders were made.

5. A significant change to the periods of parental care by the parties occurred as a consequence of the orders.  Approximately, four and a half months have passed since the orders were made.  In that time, a routine has been established for the three children that has been generally for their benefit.

6. The three children have had the advantages of a more active involvement by the husband in their care for substantial periods and the continuation of their close relationship with S in his household.  At the same time, they have had to adjust in a substantial way to lesser periods in the care of the wife which has not always been of benefit to them.  I have made findings in that regard to which I attach significant weight.

7. The evidence also reveals that the orders were not necessarily what the husband himself desired as he was motivated in part by other considerations.

8. The effect of the orders is that the three children do not have one complete weekend in any week spent with the wife who has been their primary carer for all of their lives.  The three children attend school and the weekend is the only time for uninterrupted relaxation with the husband and the wife.  The variation to the orders will allow the three children to have the benefit of such alternate weekend time with the wife, whilst at the same time providing significant time with the husband as is required to be considered pursuant to s65DAA and maintaining their current routine and their relationship with S.

9. The orders I intend to make will allow for the parties to have flexibility in making changes to arrangements for the care of the three children as circumstances require.

10. Telephone communication should of course be open to take place between the three children or any of them with the parent with whom they are not then residing.  Due to the generally co-operative parenting arrangements that the parties have made in the past, an order in general terms should suffice.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: 

Dated:  15 May 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as NOBLE-TABBERNER & TABBERNER