Parkins and Adams
[2014] FCCA 1402
•4 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PARKINS & ADAMS | [2014] FCCA 1402 |
| Catchwords: FAMILY LAW – Progressive implementation of overnight time with the father – whether in the best interests of the children. |
| Legislation: Family Law Act 1975, s.60CC |
| Applicant: | MR PARKINS |
| Respondent: | MS ADAMS |
| File Number: | MLC 563 of 2011 |
| Judgment of: | Judge F. Turner |
| Hearing dates: | 29 January 2014, 30 January 2014, 12 February 2014 & 18 June 2014 |
| Date of Last Submission: | 18 June 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 4 July 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Glaister |
| Solicitors for the Applicant: | Randles, Cooper & Co. Pty Ltd |
| Counsel for the Respondent: | Ms Dellidis |
| Solicitors for the Respondent: | Pearsons Lawyers Pty Ltd |
ORDERS
The mother have sole parental responsibility for the children X born (omitted) 2005 and Y born (omitted) 2009.
The children live with the mother.
The children spend time and communicate with the father in MELBOURNE as follows:
(a)From 10am to 4pm on the first Saturday and Sunday of each calendar month, commencing immediately and concluding on 31 October 2014.
(b)From 31 October 2014 until 31 January 2015 for one overnight on a day each month to be agreed between the parties, but failing agreement from 10am on the first Saturday of each month to 4pm on the Sunday.
(c)From 1 February 2015, for two consecutive overnights per month on consecutive days each month to be agreed between the parties, and failing agreement from after school (or 3.30pm if a non-school day) on the first Friday to 4pm Sunday.
(d)During the September 2014 school holidays for one overnight from 4pm until midday the next day on a day to be agreed, and failing agreement from 4pm on Saturday 20 September 2014 to midday on Sunday 21 September 2014.
(e)During the long Summer vacation in 2014/2015 for 4 consecutive nights on dates to be agreed between the parties, and failing agreement during the first week of those holidays.
(f)During the first school term holidays in 2015 for 5 consecutive nights on dates to be agreed between the parties, and failing agreement to be during the first week of those holidays;
(g)During each of the second and third school term holidays in 2015 for 6 consecutive nights on dates to be agreed between the parties, and failing agreement to be in the first week of those holidays;
(h)During the long summer holidays in 2015/2016 for 7 consecutive nights on dates to be agreed between the parties, and failing agreement to be during the first week of those holidays.
(i)Thereafter for half of all their school term and long Summer holidays; on dates to be agreed between the parties, and failing agreement for the first half in odd numbered years, and the second half in even numbered years.
(j)The progression of time with the father set out herein is subject to the father complying substantially with the preceding steps in the progression.
(k)In the event that the father is in Victoria and provides the mother with 14 days’ notice:
(i)From 10am to 5pm on Father’s Day;
(ii)For 6 hours at time to be agreed on the children’s and the father’s birthdays;
(iii)For 24hours at times to be agreed during (religion omitted) Easter and between 24 December and 26 December
(l)At other times as may be agreed between the parties.
The father’s time with the children shall be suspended:
(a)From 10am to 5pm on Mother’s Day
(b)From 6pm on the Wife’s birthday
(c)For 24 hours at times to be agreed during (religion omitted) Easter and between 24 December and 26 December.
The father is free to contact the children by telephone or Skype or other electronic communication method agreed between the parties each Wednesday and Friday between 4pm and 6pm with the father to initiate the calls to the mother’s mobile telephone.
All changeovers shall occur by the father collecting the children from the mother’s residence at the beginning of each period of time with him, and returning the children to the mother’s residence at the end of each period of time with him.
Provided the dates and times specified in these orders can be varied by prior written agreement between the parties.
Prior to overnight time commencing with the children in October 2014, the father shall communicate with Ms F, Psychologist in relation to the child X and shall attend upon Ms F should she consider it appropriate and useful for X, and for this purpose the mother shall do all things necessary to authorise Ms F to communicate with the father.
Prior to overnight time with the children commencing in October 2014, each of the mother and father do all acts and things necessary to undertake and complete a Post Separation Parenting Course and provide to the other a Certificate of Completion.
Prior to overnight time with the children commencing in October 2014, the father do all things necessary to communicate with the children’s General Practitioner, Dr D at (omitted) Clinic in order to be informed of the children’s current health needs, and for this purpose, the mother shall do all things necessary to authorise Dr D to communicate with the father.
The parents keep each other informed of and significant illness or injury to the children including details of any period of hospitalisation of the children.
The mother shall keep the father informed of any school, kindergarten or preschool at which the children are enrolled and the father upon his application and at his expense be able to attend all school events to which parents are normally invited to attend and shall be at liberty to obtain school notices, newsletters and school reports pertaining to the children.
The father and the mother keep each other advised of their respective residential addresses and telephone numbers.
The father have liberty to apply regarding the children spending school holiday time with him in Queensland, upon filing evidence on Affidavit of:
(a)Having secured permanent accommodation in Queensland which can accommodate the children properly, and
(b)Having secured permanent employment sufficient to fund the father’s and children’s travel to and from Queensland and Victoria four times each year, and their living expenses during those times.
All extant applications are dismissed and the matter is removed from the list of pending cases.
Pursuant to Rule 21.15 of the Federal Circuit Court Rules 2001, the Court certifies that it was reasonable for each party to employ an advocate.
IT IS NOTED that publication of this judgment under the pseudonym Parkins & Adams is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 563 of 2011
| MR PARKINS |
Applicant
And
| MS ADAMS |
Respondent
REASONS FOR JUDGMENT
The parties in this matter married on (omitted) 2004 and separated in July 2009. There are two children of the relationship X born (omitted) 2005 (now 8 years old) and Y born (omitted) 2009 (now 4 years old).
Since separation the children have lived with the mother in Melbourne, Victoria and the father has lived mainly in Queensland.
Currently the children are spending time with the father in Melbourne on the first Saturday and Sunday of each month from 9am until 4pm each day.
The father is seeking to increase the children’s time with him in Melbourne as follows:
·The current arrangement continue for 4 months (until October 2014);
·The children then spend 1 overnight with him per month for 3 months (until January 2015);
·That their time with him then increase to 2 overnights per month.
As to time in school holidays, the father seeks:
·No time in the June 2014 holidays;
·1 overnight in the September 2014 holidays;
·4 overnights in the long Summer holidays in 2014/2015;
·5 overnights in the first term holidays in 2015;
·6 overnights in the second and third term holidays in 2015;
·7 overnights in the long Summer holidays in 2015/2016; and
·Then overnight for half of all school holidays.
The main issues to be determined by the Court, are whether it is in the best interests of the children:
·to commence spending 1 overnight with the father from the September 2014 school holidays;
·for overnight time with their father to progress in school holidays as proposed by the father;
·to commence spending overnights with their father for half of the school holidays from the beginning of 2016, or never as proposed by the mother;
·for their overnight time with their father to progress for 1 overnight per month to 2 overnights per month in January 2015.
The regime proposed by the father
The regime proposed by the father is as follows:
·That from now until October 2014 he continue spending time with the children from 9am to 4pm on the first Saturday and Sunday of each month;
·That from October 2014 until January 2015 the children spend 1 overnight with him per month;
·That from January 2015 the children’s overnight time with the father increase to two nights per month;
School Holidays
·That the children commence spending overnight time with him during school holidays by spending 1 overnight in the September 2014 holidays;
·By spending 4 overnights with him in the long Summer holidays in 2014/2015;
·By spending 5 overnights with him in the first term holidays in 2015;
·By spending 6 overnights with him in the second and third term holidays in 2015;
·By spending 7 overnights in the long Summer holidays in 2015/2016; and
·By then spending half of all school holidays with him.
The regime proposed by the father is a gradual and logical progression of time with him.
The Mother’s Proposal
The mother’s submissions that the children should never progress from one overnight to two overnights with their father, nor spend half of their school holidays overnight with him are neither supported by the evidence nor in the best interests of the children. Her position would not facilitate a meaningful relationship between the children and their father.
Uncontested facts in this matter are that:
·The children live with their mother in Melbourne.
·The mother was granted sole parental responsibility for the children by orders made 24 October 2013.
·The children are to remain living with the mother (Ibid).
·The father lives in Queensland.
·The father has no permanent residence in Queensland.
·The father has no significant source of employment or income.
The Court therefore finds that it is not in the best interests of the children for them to spend time with their father in Queensland. There are no satisfactory arrangements for their accommodation.
There is no evidence before the Court as to how the father could pay for the airfares of the children to and from Queensland.
Section 60CC of the Family Law Act 1975 (the “Act”) factors
Section 60CC(2)(a) – The Court finds that it will benefit the children to have a meaningful relationship with both of their parents. Their relationship with their father can best be built by the progressions proposed by the father. It is gradual and sensitive to the needs and emotional state of the children. The Court gives great weight to this consideration.
Section 60CC(3)(a) – Both the children told the Family Reporter, Ms S, that they enjoyed spending time with their father and that they “are not scared of him or anything” (Family Report of Ms S dated 9 September 2013 at [30]).
Ms F, Psychologist, gave evidence on 12 February 2014 that:
“X is an anxious child, and at times she needs a lot of time to adjust to new situations. She’s also very concerned with changes….” (Transcript “T” 12/02/2014 p.6, l.8).
And:
“…she takes time in adjusting. So I consider that due to her developmental stage and her tendency to be over-worried with things, it’s advisable that this should be made in gradual steps, and that it should be more than appropriate that it should start at a longer period and not immediately.” (Ibid p.6, l.9).
And:
“So, as I’m hearing, this is something that’s gradual, and if this interaction happens gradually, first within Victoria, knowing that first the father can have an active engagement of her in order to get to know her better and establish that connection, I think that would be a possible. That sounds quite reasonable – also that in children we need to work with successive kind of engagements. So first you must have one night, then, after doing this for a while, stepping to two nights, then after a while stepping to three nights. So if something occurs in that fashion, I think so. It would be quite beneficial for the child to help her adjust.” (Ibid p.10, l.22).
Section 60CC(3)(b) – The children “have formed secure attachment relationships with their mother” and “distant and unfamiliar” relationships with their father (FR at [34]). The child Y was born after the parties separated. The father spent little time with the children between the date of separation and December 2012. The Court gives some weight to this consideration.
Section 60CC(3)(c) – The father appears not to have sought to be involved in making decisions for the children, but has been attempting since separation to spend time and communicate with them. However, despite orders made on 8 November 2011 he spent little time with the children until December 2012.
Section 60CC(3)(ca) – The father pays $11 per week per child. He does not contribute to their education costs, medical costs or extracurricular costs.
Section 60CC(3)(d) – Ms S concluded that as at the date of the Family Report (10 December 2013) it was “unlikely that Y would manage one week away from her mother and with her father…” (Family Report at [40]). The progression proposed by the father would not result in the children spending 7 nights away from the mother until December 2015, when Y would be 2 years older than at the date of the Family Report. The children can then both give support to each other. The Court gives some weight to that consideration.
The children can spend overnight time with their father together, such time will not separate them unduly from their mother or grandparents and will facilitate the advancement of consideration s.60CC(2)(a). The Court gives some weight to this consideration.
Section 60CC(3)(e) – There are practical difficulties and expenses associated with the children spending time with the father in Queensland, which prevent that from being a viable option. The Court gives significant weight to this consideration. All time with the father pursuant to these orders it to be in Melbourne.
Section 60CC(3)(f) – The mother has the capacity to provide for the needs of the children. The father has been absent for most of the children’s lives, and has no regular income or permanent residence.
Section 60CC(3)(g) – The children are 8 and 4 and have a close relationship with their mother. There needs to be a gradual progression of time with their father. The Court gives significant weight to this consideration.
Section 60CC(3)(h) – Not relevant.
Section 60CC(3)(i) – The father shows a somewhat self-centred attitude to parenting by his decision to remain living in Queensland when the mother and X returned to live in Victoria.
Section 60CC(3)(j) – Not relevant.
Section 60CC(3)(k) – Not relevant.
Section 60CC(3)(l) – The Court will make final orders and dismiss all extant applications without making orders for time with the father in Queensland. However, the Court orders that:
The father have liberty to apply regarding the children spending school holiday time with him in Queensland, upon filing evidence on Affidavit of:
(a)Having secured permanent accommodation in Queensland which can accommodate the children properly, and
(b)Having secured permanent employment sufficient to fund the father’s and children’s travel to and from Queensland and Victoria four times each year, and their living expenses.
Section 60CC(3)(m) – Ms F stated in her Affidavit sworn
28 January 2014 on p.5 in relation to X, that:
“Living in an environment that offers her security and nurture will contribute to build her self-confidence and gradually adjust to her new family circumstances where her mother, sister & grandparents will contribute to enable her emotional stability.”
The Court finds that it is in the best interests of the children to make the orders proposed by the father.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge F. Turner
Associate:
Date: 4 July 2014
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