Palma and Samford

[2014] FCCA 1732

FEDERAL CIRCUIT COURT OF AUSTRALIA

PALMA & SAMFORD [2014] FCCA 1732

Catchwords:
FAMILY LAW – Children – Parenting Orders – interim orders – parental responsibility – equal shared parental responsibility – best interests of the child – variation of earlier orders – whether child should spend time overnight with her father – Court Expert Report considered – commencement of overnight time.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:
Palma & Samford & Anor [2013] FCCA 1233

Applicant: MR PALMA

First Respondent: MS SAMFORD

File Number: SYC 1620 of 2013

Judgment of: Judge Scarlett

Hearing date: 22 July 2014

Date of Last Submission: 22 July 2014

Delivered at: Sydney

Delivered on: 24 July 2014

REPRESENTATION

Solicitor for the Applicant: Ms Hogg

Solicitors for the Applicant: Armstrong Legal

Counsel for the Respondents: Ms Messner

Solicitors for the Respondents: Eddy Neumann Lawyers

Solicitor for the Independent Children's Lawyer: Mr Layson

Solicitors for the Independent Children's Lawyer: Sarah Bevan Family Lawyers

ORDERS

UNTIL FURTHER ORDER

1. All earlier parenting Orders are discharged SAVE AND EXCEPT for Orders 1 to 6 made by consent on 22 July 2014.

2. The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child X born (omitted) 2003.

3. The child X is to live with the Mother.

4. In addition to the time prescribed by the Consent Orders of 22 July 2014, the child X is to spend time with the Father as follows:

   (a)From 7:00am if the child is undertaking swimming or otherwise from 8:00am to 2:0 pm on 26 July, 2 August and 9 August 2014;

   (b)From 7:00am if the child is undertaking swimming or otherwise from 8:00am to 5:00pm on 16 August, 23 August, 30 August and 6 September 2014;

   (c)From 9:00am to 5:00pm on Fathers’ Day 7 September 2014 and each Fathers’ Day thereafter;

   (d)From immediately after school or 3:00pm if the child is not attending school on Friday until 2:00pm on Saturday each alternate week to commence on Friday 12 September 2014;

   (e)From immediately after school or 3:00pm if the child is not attending school on Friday until 5:00pm on Saturday in the off week to commence on Friday 19 September 2014;

   (f)From 1:30pm to 5:30pm on Christmas Eve; and

   (g)From immediately after school until 7:00pm on the child’s birthday and on the Father’s birthday in each year.

5. Notwithstanding the provisions of the immediately preceding Orders, the child will not spend time with the Father on either the Mother’s birthday or Mothers’ Day in each year.

6. For the purposes of Orders (4)(d) and (e) above the Father must ensure that one of his older daughters is also present on the first six occasions on which the child X spends overnight time with him.

7. The Father must ensure that the child attends her scheduled activities on all occasions when she is in his care in accordance with these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1620 of 2013

MR PALMA

Applicant

And

MS SAMFORD

First Respondent

REASONS FOR JUDGMENT

Application

1. This is an application to vary interim parenting Orders made on 9^th August 2013 after an interim hearing that took place four days earlier (Palma & Samford & Anor[1]). The Orders concern the parties’ daughter, X, who was born on (omitted) 2003.

   [1] [2013] FCCA 1233

2. Those Orders provided that, in summary:

   a)The parties were to have equal shared parental responsibility for the child;

   b)The child would live with the Respondent Mother;

   c)The child would spend time with her father:

   i)between the hours of 1:30pm and 5:30pm each alternate Saturday, on Fathers’ Day and on Christmas Eve; and

   ii)from immediately after school until 7:00pm on both the child’s birthday and the Father’s birthday.

3. The Orders also provided that the Father’s time with the child was to be in the presence of one or the other of two women nominated by the Mother. There were also orders about Skype communication between the Father and the child which now appear to be redundant as a result of the orders that are to be made.

4. The Orders also provided for Dr C, a Child and Family Psychiatrist, to be appointed as a Court Expert to provide a Report for the Court under the provisions of Rule 15.09. This Report has now been prepared and released to the parties. Amongst other recommendations, Dr C recommended in her Report that there was no need for the Father’s time with the child to be supervised, but she suggested that for the first three to six months there should be someone else present, such as one of the child’s half siblings or a friend when overnight time with the Father commences.

5. The Father now seeks a variation of the interim parenting Orders, based on the recommendations of the Court Expert.

6. It should be noted that almost a year has passed since the interim hearing took place and there has not been a final hearing scheduled on parenting issues, even though Dr C recommended that “the property settlement and legal proceedings be finalized as soon as possible”. Unfortunately, the parties have been singularly unsuccessful in completing a Conciliation Conference in relation to their property matters, notwithstanding three attempts, on 24^th September 2013, 10^th March 2014 and 30^th April 2014.

7. There appears to be little to justify the Court allocating any more of its scarce resources toward a fourth Conciliation Conference and it would appear that the property proceedings should be referred for private mediation.

8. The unfortunate result of the parties’ failure to comply with the Court’s requirements for a Conciliation Conference on financial issues is that the parenting proceedings are no closer to a final hearing than they were when the interim parenting decision was handed down on 9^th August last year. It would seem obvious that a separate final hearing should be scheduled so that some finality can be reached with arrangements for the child. It is not in the child’s best interests for Court proceedings to drag on without a resolution in sight.  

The Parties’ Proposals

1. The parties have each prepared proposals for further interim orders to be made. Curiously, each party claims that their proposal is in line with the recommendations of the Court Expert in her Report. In those circumstances, one would assume that the Father, Mother and Independent Children’s Lawyer would have produced one common proposal, rather than three different proposals.

2. There was some agreement on some items suggested by the Independent Children’s Lawyer, and Orders were made by consent on 22^nd July to reflect the parties’ agreement on those matters.

3. However, the parties are still apart on the major issue, being if and when the child should spend overnight time with the Father, and in what circumstances. Essentially, the three proposals are:

   a)The Mother submits that overnight time should not commence until after the final hearing and that the child needs to spend more time with the Father during the day before overnight time should be considered;

   b)The Independent Children’s Lawyer submits that overnight time should commence early in September, after a period when the child spends more time with her father during the day on a Saturday leading up to the commencement of overnight time, which should be restricted to one night at a time; and

   c)The Father submits that overnight time should commence in late August, and should be for a period of two consecutive nights.

4. It is puzzling to understand how one set of recommendations from the Court Expert could be the basis for three such vastly differing proposals.

Areas of Agreement

1. The parties agreed on some issues and interim Orders were made by consent on 22 July. Those Orders provide that:

   1. That the parties are restrained from engaging X in any form of counselling or mental health treatment without the express consent of the other party other than through her school.

   2. X spend time with her father each Wednesday from after school or 3:00 pm until 8:00 pm.

   3. THE COURT NOTES that the father has enrolled in Parenting After Separation Course commencing in August 2014.

   4.  That X live with the mother.

   5. That the father’s time with X on Saturdays commence at 7:00 am whilst she is undertaking swimming or otherwise 8:00 am.

   6. That for changeover the father collect X from school or the mother’s residence and return her to the mother’s residence.

The law to be applied in parenting applications

1. It should be noted that the best interests of the child remain the paramount consideration, as is set out in s.60CA of the Family Law Act 1975 (Cth). I have also considered the objects and principles in s. 60B and the matters in sections 60CC, 61DA and 65DAA.

Conclusions

1. The orders of 9^th August 2013 should be discharged. There are some Orders that should remain, and they have been incorporated into the Orders to be made today. For example, it is still the case that the parents should have equal shared parental responsibility for the child. However, this is not a case where it has been argued that it would be both in the child’s best interests and reasonably practicable for the child to spend equal time with each parent.

2. Whilst the Orders to be made will significantly increase the amount of time the child spends with her father, the arrangement will still fall short of substantial and significant time as set out in s.65DAA(2) of the Act. I am not persuaded that substantial and significant time as understood in s.65DAA is reasonably practicable at this stage.

3. The earlier orders relating to Fathers’ Day, the child’s birthday and the Father’s birthday will be carried over into the new Orders. I am of a view that there should be an increase in the time that the child spends with her father on Father’s Day, noting the submission by Ms Messner of counsel for the Mother that the child should spend more time during the day with the Father before overnight time commences.

4. I have also made provision for the fact that the child should be with her mother on Mother’s Day and the Mother’s birthday.

5. It is clear that the need for the Father’s time with the child to be supervised is past. I am of the view that overnight time with the child should commence, although not quite as early as the Independent Children’s Lawyer submits. In my view, the weekend after Father’s Day, when the child will have spent a full day on Father’s Day with her father, is an appropriate time for overnight time to commence.

6. The Independent Children‘s Lawyer is of the view that overnight time should commence with one night only, rather than the two consecutive times that the Father seeks. I agree with the proposal by the Independent Children’s Lawyer. The commencement of overnight time will be a major step for the child, although she will be eleven years and four months old by then, and it should be introduced gradually. One night will be sufficient, in my view.

7. The Father proposes that one of his adult daughters, the child’s half-sisters, will be able to be present once overnight time commences. This is in line with the recommendations of Dr C. Whilst the Independent Children’s Lawyer submits that one of them should be present for the first four occasions of overnight time, for more abundant caution I propose to order that it should be for the first six occasions.

8. I accept that this order will place some burden on the two young ladies, both of whom, I understand, reside in (country omitted), but a longer period of time with one or other of them present may help to accustom the child to the new arrangement.    

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  24 July 2014