PANTON & PANTON

[2015] FCCA 2748

FEDERAL CIRCUIT COURT OF AUSTRALIA

PANTON & PANTON [2015] FCCA 2748

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – best interests of the children.

Legislation:

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

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

Applicant: MR PANTON

Respondent: MS PANTON

File Number: SYC 5432 of 2014

Judgment of: Judge Scarlett

Hearing date: 7 October 2015

Date of Last Submission: 7 October 2015

Delivered at: Sydney

Delivered on: 7 October 2015

REPRESENTATION

Applicant: In person

Solicitor for the Respondent: Mr Moutasallem

Solicitors for the Respondent: Hallak Lawyers

Independent Children's Lawyer: Ms Maitland

Solicitors for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

UNTIL FURTHER ORDER

1. In addition to the interim parenting orders made by consent today, the Applicant father is also to spend time with the children, [V], born [in] 2000, [W], born [in] 2002, [X], born [in] 2004 [Y], born [in] 2006 and [Z], born [in] 2011, as follows:

   (a)Until [date omitted] 2016, from 1.30 to 7.30 pm each Saturday, with all the children and the father is to feed the children dinner before returning them to the mother.

   (b)From and after Saturday, [date omitted] 2016, from 1.00 pm to 8.00 pm each Saturday, with all the children and the father is to feed the children dinner before returning them to the mother.

2. Pursuant to Section 62G of the Family Law Act 1975 the parties are to attend upon a Family Consultant at such time and place as the Director of Child Dispute Services directs for the preparation of a Family Report. 

3. The Application is adjourned to 2 February 2016 for further mention before Judge Scarlett in Court 3A, level 3, Lionel Bowen Building, 99 Goulburn Street, Sydney NSW 2000. 

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5432 of 2014

MR PANTON

Applicant

And

MS PANTON

Respondent

REASONS FOR JUDGMENT

1. The proceedings before the Court involve an application by the father for parenting orders. In particular, the father is seeking to vary parenting orders that were previously made by consent.  The parties, with the assistance of the Independent Children’s Lawyer, have spent a considerable amount of time today discussing arrangements for the children, of whom there are five, and have come up with what appear to me to be orders which provide a workable solution.

2. There is, however, one sticking point and that relates to a proposed order for the children to spend time with their father on a Saturday afternoon and evening.  The parties, in that regard, are one hour apart.  The proposal was that the five boys spend time with their father from 1.30 pm to 7.30 pm each Saturday, with the father to feed the children dinner before returning them to the mother.  The father is of the view that that time is insufficient and seeks an additional hour.

3. Now, it may be argued that the parties were only an hour apart but they have maintained their positions and they have provided some reasons as to why they adopt the view that they have.  Of course, the father wishes to spend more time with his sons and is particularly of the view that the outings on which they go on a Saturday afternoon provide quality time together and, in the evening, there is provision for him to cook dinner for the children.  Indeed, he has told the Court that the children have participated in the cooking – not so much [Z], the youngest child, but the older children.  He has taught them to cook gnocchi and now, as he said, they are venturing into pizza.

4. What then is the difficulty in the father having the extra hour?  There are arrangements for the children on a Saturday morning which involve their having swimming lessons at the [omitted] Pool.  The swimming takes place all year round and all children have been participating.  For a time, the second-youngest child, [Y], had dropped out of swimming but he wishes to resume the swimming lessons.  [Z], who is the youngest child, was born on [omitted] 2011 and is somewhat younger than his older brothers.  His swimming lessons are from 10 to 10.30 on the Saturday morning; [Y]’s times are yet to be established once he resumes the swimming.

5. In particular, though, the mother spends time with [Z] after his swimming lessons and spends time with him in the pool to increase his skills and assist him overcoming his developmental delay.  It has been put that [Z] has some developmental delay.  He attends preschool four days a week and, because of this delay, he has been recommended not to start school next year but to start the following year.  He will have to start the following year.  The mother proposes that [Z] will attend preschool for five days next year which, of course, will get him used to the fact that, when he goes to school in 2017, he will be required to attend school five days per week.

6. Thus, if the extra hour that the father seeks is added to the beginning to the time, that would create difficulties with the mother’s time with the children.  Mr Moutasallem for the mother has pointed out that the mother does not have the use of a motor car.  She needs to walk back from the school with the children.  That can take some 45 minutes.  She can certainly comfortably have the children ready by 1.30 pm.  12.30 pm could be a difficulty for her or could cut into the time that she spends, particularly with [Z], assisting with his swimming.

7. Why then could not an extra hour be added to the time so that the children return by their father at 8.30 pm?  That, it has been put, would be a bit late for [Z].  He is currently aged four years and seven months.  As it is, he falls asleep in the car when he is being driven back and then, when he wakes up, he can be difficult to settle and that creates some difficulties on a Saturday night, getting him back to sleep and sleeping properly.  It can be seen that the mother has good reasons for wishing to stick to the proposed timetable, especially bearing [Z]’s needs in mind.

8. Now, it has been suggested by the father that he could drive the children and the mother home from the pool after swimming, although the mother is not keen to accept this offer.  The mother has deposed in her affidavit to reasons why she would not wish to do that and the reality is that she has made allegations, and I stress that they are allegations untested by cross-examination, of instances of violence by the father towards her during the time when the parties lived together.

9. One of the difficulties with an interim hearing is that, where there are contested issues of fact, a Court may often be unable to arrive at a decision on the facts in circumstances where the Court is following the necessarily truncated procedure as described by the Full Court of the Family Court in Goode & Goode[1] and going from the parties’ affidavits.  There is no opportunity to test parties’ evidence by cross-examination at an interim hearing.  Plus, it can be, where there are differences in the parties’ evidence on affidavit, the Court may not be in a position to make factual findings.

   [1] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

10. That said, the mother has given reasons as to why she does not wish to participate in a process whereby the father would drive her and the children back home from the pool on a Saturday afternoon.  It should be stressed that these are interim orders.  The Court will be ordering a family report today and it will be well into the New Year before interviews are completed and that report is made available.  If the matter does not resolve on a final basis, it will be a considerable period of time before a final hearing takes place. The situation may have changed by then.

Applications for Parenting Orders

1. When considering what are appropriate orders to make, the Court must be bound by various sections in the Family Law Act 1975 (Cth) contained in Part VII of the Act. Section 60B sets out the objects of Part VII and the principles in support of those objects. Section 60CA is particularly important because it provides that, when making a parenting order, the Court must regard the best interests of the child or the children concerned as the paramount consideration. Section 60CC sets out how the Court determines what is in a child’s best interests.

2. Looking at the primary considerations in subsection (2) and the additional considerations in subsection (3), the Court is required to balance the benefit to the children of having a meaningful relationship with each parent against the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.  There are additional considerations in subsection (3), including the wishes of the children.  All of these matters have been considered where they are relevant.

3. The Court looks at section 61DA relating to the presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility, although that presumption does not apply in cases of family violence. The Court may look at other orders flowing from that. I do not propose to vary the other orders which have been agreed to by the parties today. The proposed orders appear to be well-drafted. The driving force behind them appears to be the Independent Children’s Lawyer and she appears to have applied her mind to the children’s best interests and produced a set of orders that have largely been agreed to by the parties. It is only the amount of time with the children on a Saturday after swimming where the parties are apart, and they are apart by one hour.

4. I am mindful of the fact that these orders will be in force for some time.  It seems to be that the needs of [Z] have to be considered at this stage and there are reasons given by the mother as to why additional time on a Saturday is not really in his best interest.  But those arrangements are not set in stone.  The children are getting older and as [Z] gets older he will be more able to cope with staying up a bit later and the situation may well be somewhat different in the New Year.

Orders that are in the best interests of the children

1. It seems to me that the time when [Z] attains the age of five, which is just less than six months away, would be when additional time could be spent with his father.  He would be that much older, he would have settled into the routine of going to pre-school five days a week, he will have become used to the current arrangements, or the arrangements proposed, and an additional period of time would be, in my view, relatively easy for him to adapt to.  What I propose to do is to look at [Z]’s fifth birthday as a landmark.  [Date omitted], in fact, falls on a Friday in 2016 and, as we are looking at orders for the Saturday, the Saturday immediately after his birthday seems to me to be a time when additional time can be set aside for the children as a whole to spend time with their father.

2. It certainly appears to me to be appropriate and in all the children’s best interests that they travel as a group; that they travel together to their father’s residence and that they travel together home.  My view is that the Saturday immediately after the day that [Z] attains the age of five, would be the most appropriate time to expand the time he spends with his father by this additional hour that the father seeks.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  8 October 2015