Pankhurst & Standen
[2021] FedCFamC1F 18
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pankhurst & Standen [2021] FedCFamC1F 18
File number(s): CAC 1639 of 2021 Judgment of: GILL J Date of judgment: 6 September 2021 Catchwords: FAMILY LAW – CHILDREN – Best interests – Interim parenting orders – Equal shared parental responsibility – Substantial and significant time Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 60B, 65DA, 65 DAA and 65DAC Cases cited: Goode & Goode (2006) FLC 93-286
SS & AH [2010] FamCAFC 13
U & U (2002) 211 CLR 238
Division: Division 1 First Instance Number of paragraphs: 71 Date of hearing: 25 August 2021 Place: Canberra Counsel for the Applicant: Ms Hartstein Solicitor for the Applicant: ECG Legal Counsel for the Respondent: Mr Othen Solicitor for the Respondent: Petkovic & Todd Solicitor for the Independent Children's Lawyer: Legal Aid ACT ORDERS
CAC 1639 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PANKHURST
Applicant
AND: MR STANDEN
Respondent
INDEPENDENT CHILDREN'S LAWYER
Other
ORDER MADE BY:
GILL J
DATE OF ORDER:
6 SEPTEMBER 2021
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
1.The parents, Ms Pankhurst (“the Mother”) and Mr Standen (“the Father”), have equal shared parental responsibility for the children X, born … 2012, Y, born … 2014, and Z, born … 2016 (“the children”).
2.The children shall live with the Father.
3.Unless otherwise agreed, the children shall spend time with the Mother in an alternate week arrangement during school term time as follows:
(a)Week one:
(i)From the end of school on Wednesday until the commencement of school on Thursday; and
(ii)From the end of school on Friday until the commencement of school on Monday.
(b)Week two:
(i)From the end of school on Wednesday until the commencement of school on Thursday.
4.For the purpose of Order 3 above, week one will be taken to commence on the delivery of this judgment and otherwise in the first week of each school term thereafter.
5.Unless otherwise agreed, school holidays be shared equally as follows:
(a)With the Mother from the conclusion of the last day of school until the middle Monday at 4pm; and
(b)With the Father from the middle Monday at 4pm until the commencement of school the following term.
6.Unless otherwise agreed, the children spend Father’s Day with the Father from 10:00am until 6:45pm.
7.Unless otherwise agreed, the children spend Mother’s Day on 8 May 2022 with the Mother from 10:00am until 6:45pm.
8.Unless otherwise agreed, the children spend time with each parent over the Easter period as follows:
(a)From 9am Maundy Thursday until 12:00pm Easter Saturday with the Mother and from 12:00pm Easter Saturday until 5:00pm Easter Monday with the father in odd years;
(b)From 9am Maundy Thursday until 12:00pm Easter Saturday with the Father and from 12:00pm Easter Saturday until 5:00pm Easter Monday with the Mother in even years.
9.Unless otherwise agreed, the children spend time with the Father over the Christmas period from 9:00am Christmas Eve until 1pm on Christmas Day.
10.If a child is not otherwise spending time with a parent on the child’s birthday then, unless otherwise agreed, that child shall spend from 4:30pm until 7:30pm with the parent that the child would not otherwise be with.
11.Unless otherwise agreed, changeovers shall be:
(a)On school days, at the children’s school;
(b)On non-school days, at the party’s house at which the children’s time is concluding.
12.The matter is adjourned to a Judicial Registrar on a date to be advised for the making of further directions and, should the Judicial Registrar consider it appropriate, directing the parties to attend a dispute resolution event with a Judicial Registrar and Court Children’s Expert.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Pankhurst & Standen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
These proceedings concern the parenting arrangements for X, Y and Z (aged 9, 6 and 5). The parties intend to relocate overseas by May 2022. Whilst the parties ultimately seek final orders determining whether the children are to live with the applicant mother in Country B or the respondent father in the United Kingdom, this judgment concerns the interim care arrangements for the children prior to their departure from Australia. Those interim arrangements are for the period pending the final hearing, to be listed to take place prior to the expiration of the parties’ visas in May 2022.
The parties disagree about the time that each parent is to spend with the children whilst they remain in Australia. In short, the mother now seeks an equal time arrangement. The father proposes that the children continue to live with him and spend time with the mother in an alternate week arrangement which also provides for time with the children on Wednesday afternoons and from Friday to Sunday on alternating weekends. The Independent Children’s Lawyer’s (the ICL) position is that the time proposed by the father is insufficient and that orders should provide for a significant increase from that proposal.
MATERIAL RELIED UPON
The applicant mother relied upon:
(a)Initiating Application filed 28 July 2021;
(b)Affidavit of the applicant filed 28 July 2021;
(c)Notice of Child Abuse, Family Violence or Risk filed 28 July 2021; and
(d)Affidavit of the applicant filed 23 August 2021; and
(e)Case summary document filed 24 August 2021.
The respondent father relied upon:
(a)Response to Initiating Application filed 17 August 2021;
(b)Affidavit of the respondent filed 17 August 2021; and
(c)Case summary document filed 25 August 2021.
The mother and father provided electronic tender bundles prior to the hearing, extracts from which became exhibits in the proceeding.
Orders sought by the applicant mother
The Proposed Minute of Orders emailed to chambers and the parties on 25 August 2021 identified that the mother seeks interim orders as contained in a letter of offer of 20 August 2021 annexed to her affidavit filed 23 August 2021. In summary this provides for equally shared parental responsibility, a week about arrangement, equal sharing of school holidays, handover and for days of special significance.
Orders sought by the respondent father
In the Response to Initiating Application filed 17 August 2021, the father sought no order regarding parental responsibility, that the children live with him, and that they spend time with the mother on Wednesday afternoons and alternate Friday through to Sundays.
The father also sought orders in relation to days of special significance and an unequal sharing of school holidays.
THE EVIDENCE
Although prior to the parties’ move to Australia in about May of 2018 the parties had shared the responsibility for parenting, with the mother undertaking periods of the primary care of the children, it was uncontroversial that following the move it has been the father who has undertaken the primary care role. This has occurred in circumstances where he has not retained paid employment while in Australia, whilst the mother has undertaken a senior position in a regional hospital as well as duties in another regional hospital.
The parenting roles, similarly to prior to the move to Australia, were undertaken with a high degree of cooperation, until the end of their relationship.
The mother accepted that the father was the primary parent to interact with schools. There was dispute as to the mother’s previous and current work hours and as to whether she rarely attended the children’s week day activities. There was dispute as to who would have dinner ready for the children, along with dispute as to whether the mother arrived home at about 5:00pm (her account) or about 6:30pm (the father’s account).
The parties’ relationship has deteriorated, the mother asserting that they have been separated under the one roof since October 2020, the father asserting that separation occurred at the end of June 2021.
Whichever of those accounts is accurate, the parties appeared to continue to parent cooperatively until the end of June 2021, with the mother moving out of the family home in July 2021.
The mother asserts that the father has undermined her position with the children by what he has said to and about her. He denies having made the comments to the children as asserted by the mother. The father accepts that conflict has occurred, to which the children were exposed, where he either dropped or threw the mother’s hamburger onto the floor and where the mother either dropped or he knocked pasta onto the floor. He however denies allegations that his conduct has been more generally emotionally uncontained.
The mother asserts and the father denies that he has controlled and unduly restricted the children’s time with her.
Much of the mother’s assertion as to this is reliant upon her description that she felt that the father was acting in a restrictive manner, whilst the father characterises the interaction as the result of the mother failing to contact to arrange time.
More concretely the mother pointed to occasions where she has sought to arrange weekend time and the father has failed to permit it to occur, or to respond other than to indicate that he would consider the request by the mother, allegedly saying that “you can see them any time you want in this house.”
For example, the mother describes that when she requested the children to stay with her on 18 July 2021 the father responded “absolutely not, they need stability”. However, the father asserts that agreement was reached for the children to spend overnight with the mother overnight on 17 July and through the day of 18 July. He says that the mother dropped them back to the father on the morning of 18 July on the basis that the children were bored.
The father says later that day he took the children to lunch, inviting the mother to join them, which she did. He says that the mother also joined them for dinner, and parent teacher interviews on 19 and 21 July.
The father further says that the children spent overnight time with the mother on 24 July.
The parties undertook two holidays together with the children in July 2021, including from 30 July to 3 August.
The mother describes requests to see the children on 3 August as they travelled home from their holiday, a request that she alleges was responded to by the father saying negative things about her, inferentially within the hearing of the children.
The mother was invited to join the father and children on outings on 7 and 8 August. The mother made a further request to see the children for the weekend on 9 and 10 August, to which she says the father said both that he would think about it, and also that she could see them whenever she wanted, although she was the one who had moved out.
The children stayed with the mother overnight on 14 August.
The mother requested on 17 August to have the children for the weekend from the Friday. On 19 August the father invited the mother to join them for dinner, which she declined.
The children spent overnight time with the mother on 21 August.
Without being able to finally conclude whether or not these arrangements were controlling as submitted by the mother, they at least provided the children with frequent and varied time with the mother following the separation.
It is at present unclear that the father has been deficient in promoting and supporting the relationship with the mother. It is also not clear that the mother has failed to pursue time with the children. It is apparent that the parents have a difficult relationship in the aftermath of their separation.
The parties both seek to have arrangements supported by court orders which will mean that the future time is not subject to either, on the mother’s account, the father potentially withholding consent or, on the father’s account, the mother not pursuing time.
The father resists the mother’s application, asserting that the children will be benefitted by his maintaining primary care, and pointing to limitations in the mother’s capacity to exercise care of the children by virtue of her employment. It appeared uncontroversial that the father is currently undertaking home schooling during the COVID-19 lockdown.
He notes the complex lives led by the children with their various activities that he manages (and which are presumably currently in hiatus during the lockdown), observing that the mother has not been able to attend a number of these activities in the past.
Although the father raised criticism aimed at the mother’s capacity being undermined by mental health issues, the evidence led by him does not suggest any current issue with the mother’s capacity in this respect.
The historical matters raised by the father did not prevent the significant sharing of roles while the parents were together, including whilst the father had employment that required frequent travel on his part.
The mother contests that there are significant limitations to her capacity to care for the children by virtue of her employment. While the father asserts that her working hours were close to 55 hours per week, the mother identifies that she has applied for reduced hours on 20 April 2021, having described that she works 36 hours per week having reduced her hours from 40 hours per week. The mother also says that she remains on call for four days each four weeks. However, the father identifies that the mother works at another local hospital in addition to her primary work. He further says that the mother is at times delayed from being able to depart from work due to commitments, leaving the prospect of the children going into after school care.
The mother described her working hours as Monday to Friday 8 am until 5 pm, with each fourth week being on call from either Monday morning until Thursday morning, or Thursday morning until Monday morning. It is difficult to equate this with the mother’s assertions as to her reduced hours. It is also difficult to equate to Exhibit H1, being the roster for the mother’s primary work in May and June 2021 which regularly showed working hours from 8 am until 5.30 pm, and which did not include work at the second hospital.
The mother also asserted that if the week about arrangement commences she will be able to take leave to attend to home schooling during the current lockdown. This prospect was not supported by anything other than the mother’s assertion.
The father submits that low weight should be given to the mother’s representations about leave or reduced hours in the face of the evidence being unsupportive of the idea that the mother has already reduced her hours, despite her application of April 2021 for reduced hours. The mother has not indicated to the court what her current working hours are despite leading evidence of the earlier application to reduce the hours.
The mother accepted that she may need to have recourse to outside of school care.
The ICL submitted that the case is appropriate for there to be an order for equally shared parental responsibility. The ICL regarded what was proposed by the father as being at the minimum end of the spectrum of appropriate arrangements to spend time with the mother, preferring that the children have as much time as possible with each parent, observing that at one time or another each parent has been the primary carer, and that the children are facing the future prospect of limited time with one parent or another due to the conflict as to which country they should return to. The ICL’s position is that it is not in the children’s interests for the time arrangements to be inconsistent.
Although the ICL urged that, due to the difference in what the father said in his affidavit about ending employment with a particular employer, and a letter regarding such annexed to the mother’s affidavit, that there should be doubt as to the father’s credibility in his denials as to denigrating the mother. At this stage of the proceedings, where the evidence is untested and where, if relevant, the father has not been asked about that issue, it would be premature to determine issues on the basis of such credibility questions.
The ICL noted that the mother’s work arrangements could support a result other than equally shared care, but also, colloquially and correctly, observed that children should not be penalised for the parent’s holding of a high-powered job. The ICL further submitted that the father’s proposal for Wednesday afternoons was an insufficient arrangement for the children. She submitted that there should be at least week day and weekend time with each parent.
DISCUSSION
Whether proceedings concerning children are interim or final, the paramount consideration in determining what order should be made is, pursuant to s 60CA of the Family Law Act 1975 (Cth) (‘the Act’), the best interests of each of the children. That is to be determined on consideration of the matters set out at s 60CC of the Act, and in accordance with the objects and principles set out in s 60B and the reasoning process set out at s 65DAA.
In interim proceedings the Court is limited, by the lack of testing of evidence, as to the determination of contested factual matters that underpin a decision as to what is in a child’s best interests. As stated in SS & AH [2010] FamCAFC 13 at [81], it is necessary to:
keep in mind the statements in Goode and Goode that at an interim hearing it is important to identify the agreed/uncontested facts and that consideration of the s 60CC factors is likely to be limited, given that there may be little uncontested evidence on which findings can be made.
Despite this limitation, at [100] it is stated that:
Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
The Court is obliged to take proper account of the evidence led, the arguments pursued, and the positions of the parties, while remembering that the parties’ positions do not set the boundaries for making a decision as to what is in a child’s best interests, those boundaries being set by the objects and considerations set out in the legislation (U & U (2002) 211 CLR 238).
In this case, the key issues identified for X, Y and Z relate, firstly, to ensuring that they enjoy the benefits of meaningful relationship with both of their parents, and appropriate care arrangements and nurturing as are able to be provided by the parents.
Secondly, the key issues for X, Y and Z concern the current disruption of their lives, which involves not only the end of the parent’s relationship and cohabitation, but also a fast-approaching international relocation which will see them with a significantly changed relationship with one parent or another.
Whilst issues of family violence are also identified, and are unable to as yet be resolved, to the extent that they allege the potential use of the children as a means of control, any risks are reduced by having an appropriate structure dictated by the orders of this court. That structure is to be derived from consideration of the issues of the benefits of meaningful relationship, parental capacity, nature of the relationships with the children, and the effects of a change in the children’s circumstances.
The mother emphasises the benefits of meaningful relationship being supported by an equal time arrangement.
Countering the father’s case for stability of arrangements pending the overseas move, the mother submits that change has already occurred by virtue of the end of the relationship and (inferentially) the end of the cooperative parenting arrangements.
The first issue to be dealt with is as to the allocation of parental responsibility. As best as can be discerned the father seeks no order, leaving the allocation as joint parental responsibility. The mother and the ICL seek orders for equally shared parental responsibility.
The case mounted by the mother and her description of events would, if accepted, mean that the father has engaged in family violence. This means that there are reasonable grounds to believe that he has engaged in family violence. This does not equate to a finding at this stage that he has perpetrated family violence, but rather that reasonable grounds for such a conclusion have been identified. They are, as yet, untested.
They mean that the s 65DA presumption that an order for equally shared parental responsibility is in the best interests of the children is not applicable.
Despite the inapplicability of the presumption, it is in X, Y and Y’s best interests that an order for equally shared parental responsibility be made in this instance. The parents have, until the very recent past, been closely involved on a highly and mutually reliant cooperative approach to the care of the children, with each having taken on the role of primary carer at various stages. They are each equally well qualified, on the current evidence, to make decisions for the long-term interests of the children. Although there are now difficulties between them, these do not appear to be of a magnitude to prevent long term decision making to be made in the cooperative manner described at s 65DAC of the Act. It is unlikely to be to the benefit of the children at this interim stage to have one or the other parent making long term decisions unilaterally. Accordingly an order will be made for equally shared parental responsibility.
Such an order brings into play the reasoning pathway contained at s 65DAA, which provides for structured sequential consideration, as described in Goode & Goode (2006) FLC 93-286 of whether an order for equal time, or for substantial and significant time will be in both the best interests of the children and reasonably practicable.
There are considerations that point toward an order for equal time. Such an order will provide maximum time for the children with each parent, where each parent in the past has acted as primary carer, and where the children no longer live with the parents simultaneously. Such orders would also provide for the children to have the involvement of each parent in the various aspects of their lives, their school and extra curricular activities. The children would also have certainty as to the arrangements for the time that they spend with each parent.
Although there are difficulties between the parents, they are not suggestive of an incapacity to cooperate across the short term to ensure that such arrangements would work well for the children. There is nothing that would render an order for equal time less than reasonably practicable.
There are other considerations that point away from an order for equal time being in the children’s best interests, and such being supported more by an order for substantial and significant time.
For in excess of three years, being since the children were about 6, 3 and 2 years old the father has been the primary carer. While the children have already been disrupted by the end of the parent’s relationship, a move to equally shared time would further disrupt the ongoing pattern of primary care, in circumstances where the children face the imminent further disruption of an international move and greater separation from one parent.
A week about arrangement would involve a complete change of residence each week. It would also involve an extended period of seven days between spending time with one parent or the other.
Although unclear, it is likely that there would be further change to the children’s care arrangements by recourse being had to out of school care, due to the mother’s work arrangements, which do not appear as eased as suggested by the mother. While this is not suggested to be negative in and of itself, it represents further change to be managed by the children. It should however be acknowledged that even a move to substantial and significant time may also involve recourse to out of school care.
In the same way that an order for equal time will render the arrangements with each parent certain, so too will an order for substantial and significant time.
If an order for substantial and significant time were to be made, it should not be one that is as limited as proposed by the father. The children, as supported by the ICL, should be able to spend greater time with the mother during the school week, and certainly greater than mere after school time as proposed by the father.
The key tension is between orders that will maximise the time with both parents, as against seeking to expose the children to less change and disruption in the short term.
On balance the children’s best interests are best served by orders that provide certainty for the time that they will spend with each parent (subject to the parents agreeing to further tailor the arrangements), that provide for both substantial and significant time, and frequent time with each parent. In meeting these ends the orders should also seek to provide some level of continuity for the children, by maintenance, to some degree, of the primary parenting arrangements in place prior to the end of the relationship.
This results in orders that differ from either those proposed by the mother or the father, but consistent with the matters raised by the ICL.
The orders will provide for the children to have weekend time and school time with both parents. To achieve this the children will spend time with the mother from each alternate Friday, from the end of school time, until the following Monday at the commencement of school time. Further they should spend from the end of school time each Wednesday until the commencement of school time the next morning.
The children should also spend equal time with each parent during the school holidays, in a block period of time as proposed by the mother, which will allow each parent to make holiday arrangements.
The father’s proposal for father’s and mother’s day is preferable to the mother’s proposal, as it provides less potential disruption to the overall pattern of time, allowing as it does for a period of those days to be spent with the relevant parent, rather than displacing the whole weekend.
The differences between the father and mother for Christmas day and Easter are marginal and the mother’s proposal will be adopted.
The proceedings will be adjourned to the Judicial Registrar for the making of further directions and, should the Judicial Registrar consider it appropriate, directing the parties to attend a dispute resolution event with a Judicial Registrar and Court Children’s Expert.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 6 September 2021
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