PALMER & CROSSMANN

[2014] FCCA 2378

FEDERAL CIRCUIT COURT OF AUSTRALIA

PALMER & CROSSMANN [2014] FCCA 2378

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – parental responsibility – equal shared parental responsibility – two young children below school age – appointment of independent children’s lawyer.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 68L

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

Applicant: MS PALMER

Respondent: MR CROSSMANN

File Number: SYC 6195 of 2014

Judgment of: Judge Scarlett

Hearing date: 10 October 2014

Date of Last Submission: 10 October 2014

Delivered at: Sydney

Delivered on: 10 October 2014

REPRESENTATION

Solicitor for the Applicant: Ms Meadth

Solicitors for the Applicant: Alexanders Lawyers

Solicitor for the Respondent: Mr Ndou

Solicitors for the Respondent: Bazzi Lawyers

ORDERS

UNTIL FURTHER ORDER

1. The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the children X born (omitted) 2009 and Y born (omitted) 2011.

2. The children X and Y are to live with the Applicant Mother.

3. The children are to spend time with the Father as follows:

   (a)From 10:00am until 4:00pm each Wednesday until such time as each of the children commences to attend school;

   (b)from 9:00am on Saturday to 5:00pm on Sunday each alternate weekend commencing on Saturday 18 October 2014;

   (c)from 2:00pm on Christmas Day until 5:00pm on Boxing Day; and

   (d)At such other times as the parties shall agree

4. For the purposes of the above Order, the Father is to collect the children from the Mother’s residence at the commencement of his time with them and the Mother is to collect the children from the Father’s residence at the conclusion of his time with them.

5. The parties must do all acts and things and sign all documents as shall be necessary to enrol the child X at (omitted) Public School in time for the commencement of school at the start of Term 1 in 2015.

6. Each parent must attend a parenting after separation course and provided evidence to the other party of their enrolment in and successful completion of such course within six (6) months of the date of this Order.

7. The interests of the children X born (omitted) 2009 and Y born (omitted) 2011 are to be independently represented by a lawyer under the provisions of section 68L of the Family Law Act 1975 and Legal Aid New South Wales is requested to provide such representation.

8. Within fourteen (14) days of the date of these Orders each party must forward to Legal Aid New South Wales at 323 Castlereagh Street Sydney NSW for the use of the Independent Children’s Lawyer when appointed copies of all Applications, Responses, affidavits and other relevant documents.

9. The Independent Children’s Lawyer is granted leave to issue up to ten (10) subpoenas without charge. 

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6195 of 2014

MS PALMER

Applicant

And

MR CROSSMANN

Respondent

REASONS FOR JUDGMENT

Application

1. The Application before the Court is an application for interim parenting orders. The proceedings concern the parties’ two children, X, born (omitted) 2009, and Y, born (omitted) 2011. 

2. The parties separated in February of this year and the children have been living with their mother and spending time with their father, although this has been by arrangement with the parties, not apparently in any particular pattern, and certainly not subject to any Court orders.

3. The parties have, on the submissions of their solicitors, been engaging in correspondence relating to the time that the children should be spending with each parent but the incident that brought the matter to a head were circumstances that persuaded the Mother to bring an urgent application to the Court seeking a recovery order. 

4. The Mother deposed in her affidavit that she and the Father had made arrangements for the children to spend time with the Father on 29^th September with a view to their return to the care of the Mother on Wednesday 1^st October 2014.

5. It is the Mother’s case, however, that the Father declined to return the children to her care and she has not able to spend time with them since then.  As a result, the Mother brought an urgent application to the Court for a recovery order and that application was dealt with ex parte on the afternoon of Friday 3^rd October 2014. The children were returned to the care of the Mother as a result of the recovery order.

6. The matter came back to Court on 8^th October, at which time the Father was represented. The Father has filed a response and an affidavit in support and it is noteworthy that he strongly disputes the circumstances that led to the recovery order or at least the Mother’s version of them.  There are many matters that the Father places in issue. 

7. The parties were directed, under the provisions of section 11F of the Family Law Act 1975 (Cth), to attend a Child Dispute Conference with a Family Consultant and I directed that the Child Dispute Conference should be reportable under the provisions of section 11C of the Act.

8. The parties were fortunate in obtaining an appointment to see a Family Consultant on the afternoon of 8^th October and, as a result, I adjourned the proceedings until this morning for further mention.  The parties have now received, as of this morning, a copy of the Child Dispute Conference Memorandum to Court.  It is a detailed and, in my view, very helpful memorandum. 

9. It sets out what the Family Consultant believed to be an agreement, namely that the children would spend time with their father each Wednesday and Sunday from 10:00am until 4:00pm, provided that the time were to be supervised by the paternal grandparents or one of them.

10. The Family Consultant expressed the belief that the Father was likely to agree to this arrangement on a short-term interim basis but did not believe that either of the paternal grandparents ought to need to spend the entire time with him and the children.  I might comment at this stage that the evidence before the Court is that each party is currently living with their respective parents, although I am informed that the Mother will shortly be changing her residence but will still be living in the same block as her parents.

11. The Father’s position, as set out in his response, was that he sought that there should be shared care of the children on a week about basis. 

Orders Sought

1. The positions as argued by the parties’ solicitors this morning were somewhat different to that and, indeed, somewhat different to what the Family Consultant believed to have been the agreement between the parties at the Child Dispute Conference. Certainly, there has been agreement between the parties that they were to attend a Parenting After Separation course separately, not together.

2. There has been an agreement about the elder child, X, commencing school at (omitted) Public School at the commencement of the school term next year.  The parties are ad idem on the fact they should have equal shared parental responsibility for the children.  The Family Consultant recommended the appointment of an independent children’s lawyer, giving the reasons as:

   …given the ages of the children and the current limited time they are spending with their father.

3. The parties’ solicitors each informed the Court that there was no issue about the appointment of an Independent Children’s Lawyer and I am of the view that that is appropriate and indicated by the evidence before the Court.  Where the parties are apart is not on whether the children should spend time with their father but on the amount of time that they should spend. 

4. The Mother maintained her position that the children should spend from 10:00am to 4:00pm on Wednesdays and Sundays with their father.

5. I was informed by the Mother’s solicitor that the Mother did not seek that the Father’s time with the children should be supervised.  It is significant that the Mother is in permanent employment.  She works at a (employer omitted) five days a week and usually finishes work at about 3:00pm.  At this stage, I understand that the Father is not currently in employment. 

6. The Father seeks an order that there should be some overnight time with the children. After some inquiry and clarification, the Father’s solicitor put to the Court that his client sought that the children should spend overnight time with him on four occasions per week.  That is certainly not agreed to by the Mother.

The Law in respect of applications for Parenting Orders

1. These are interim orders which are being sought to be made. The Court must consider the ruling laid down by the Full Court of the Family Court of Australia in Goode & Goode[1], particularly insofar as the Court must consider the question of equal shared parental responsibility under section 61DA. As there is no issue between the parties as to equal shared parental responsibility, I do not propose to explore that any further. I am certainly not of the view that there is anything that would indicate strongly to the Court that that would not be in the children’s best interests or would not be appropriate.

   [1] [2006] FamCA; (2006) 36 Fam LR 422; FLC 93-286

2. The Court is, however, apart from the requirement of section 61DA, required to consider a number of sections in Part VII of the Family Law Act. Section 60B sets out the objects and principles of Part VII. Section 60CA of the Act provides that the best interests of the child should be the paramount consideration. Section 60CC sets out the way in which a court determines what matters are in a child’s best interests, and the Court is required to have regard to the considerations which are the primary considerations set out in subsection 60CC(2) and the additional considerations set out in subsection 60CC(3). Not all of the latter will be relevant.

3. The requirements of the primary considerations in subsection (2) of that section are that the Court must consider the benefit to the children of having a meaningful relationship with both of the child’s or the children’s parents.  The Court must look at protecting the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.  The latter of the two considerations must be given greater weight.

4. Section 61DA and the equal shared parental responsibility provision, I have discussed, and of course, if the Court makes an order providing for equal shared parental responsibility, it must consider whether it is in the best interests of the children and reasonably practicable, under section 65DAA, for the children to spend equal time with each of their parents or, failing that, whether it is in the children’s best interests and reasonably practicable for the children to spend substantial and significant time with each of their parents. I have considered those matters.

Conclusions

1. I am not, at this stage, satisfied on the evidence before me as to the best interests of the children being met by their spending equal time with each parent and, indeed, I would have some doubts as to the reasonable practicability of it. 

2. I have also considered substantial and significant time and I am satisfied that whilst there should be the commencement of a regime of time that the children spend with their father, but it will be, at this stage, something less than substantial and significant time.

3. The Family Consultant raised the question of the appointment of the Independent Children's Lawyer, given the ages of the children and the current limited time that they are spending with their father. I propose to make such an order under the provisions of section 68L. What that gets down to is what amount of time the children should spend with their parents.

4. I am certainly of the view that until further order there should be equal shared parental responsibility.  At this stage, I believe an order should be made that the children should live with their mother until further order, but that there should be orders providing for them to spend regular time with their father. 

5. They are young children.  The older of the two will start school next year.  Her little brother, Y, still has a few years to go.  It is important for young children, certainly in the age group of four and under, that they spend regular time with parents and relatively frequent time to build up an attachment to each parent.  Going for a lengthy period of time without seeing one parent or the other is not regarded as being conducive to the building up of an attachment relationship. 

6. It is for this reason that I am of the view that the children should be spending time with their father each week, and I have considered the question of overnight time pressed by the Father, opposed by the Mother.

7. The Mother is of the view that the children need to settle down before there should be overnight time.  It was put to me that there had not been overnight time on a regular basis, but, of course, with the incident that led to the Mother commencing proceedings for a recovery order, certainly, the children did spend one period overnight with their father in the home of their paternal grandparents.  There is no evidence for the Court that the children have exhibited any adverse signs as a result of their spending overnight time. 

8. It is significant, in my view that the Father currently resides with his parents. Grandparents are important to children, especially young children, and the Father’s parents would be in the position to assist him with the care of the children.

9. It is for these reasons that I consider that there should be an introduction of overnight time on alternate weekends to commence tomorrow week.  I note, also, that Christmas is coming up, and I am of the view that the children should spend some time with their father and paternal grandparents on Christmas Day, and I consider that that should go over until the afternoon of Boxing Day.  For all of those reasons, I propose to make the following orders until further order.

10. The appointment of an Independent Children's Lawyer will take about four weeks for that to come into effect, and what I think I should do is adjourn the matter for a period of time to allow the Independent Children's Lawyer to make preliminary arrangements and to appear on the next occasion. That will also allow time for these parenting orders to get underway and for the children to settle in to the somewhat conservative arrangement. This will take us through until a date in November.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  10 October 2014