Pergolese and Benvenuto

[2017] FamCA 934

FAMILY COURT OF AUSTRALIA

PERGOLESE & BENVENUTO [2017] FamCA 934

FAMILY LAW – CHILDREN – With whom a child spends time – Where the mother seeks an increase of time with the child – Best interests of the child – Child’s best interest to have a meaningful relationship with both parents – Where the Court ordered an increase in the mother’s time to three nights per fortnight – Consideration of where the child should attend primary school in 2018 – Consideration given to the current primary care arrangements with the father – Where it is in the best interests of the child to attend the school that is closer in proximity to the father’s residence

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Pergolese

RESPONDENT: Ms Benvenuto

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 638 of 2015

DATE DELIVERED: 17 November 2017

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 8 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Green

SOLICITOR FOR THE APPLICANT: Phillips Green & Associates

COUNSEL FOR THE RESPONDENT: Litigant in Person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Schirripa

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

Orders

1. That B born … 2012 (“the child”) spend time with the mother as follows:-

   (a)From the conclusion of school on Friday (or 3 pm if a non-school day) to 6 pm on the following Sunday and each alternate weekend thereafter, commencing 17 November 2017;

   (b)In the intervening week from the conclusion of school on Thursday (or 3 pm if a non-school day) to the commencement of school on Friday (or 6 pm if a non-school day), commencing 23 November 2017;

   (c)That during the Christmas school holidays the mother’s time with the child will be extended by two (2) nights to 6 pm on Tuesday PROVIDED THAT paragraph 1(b) is suspended during school the Christmas school holidays.

2. That the child spend time with the mother from 4 pm on 24 December 2017 to 4 pm on 25 December 2017 and with the father from 4 pm on 25 December 2017 to 4 pm on 26 December 2017.

3. That the parties do all things and sign all such documents necessary to complete the child’s enrolment at M School for the 2018 academic year only NOTING that whilst the enrolment application will be in the joint names of the parties, the father has indicated that he will be responsible for all school and tuition fees and other costs and charges.

4. If the child is not at school THEN handover is to take place as agreed and in default of agreement at the Hungry Jack’s Restaurant at Suburb J.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pergolese & Benvenuto has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 638  of 2015

Mr Pergolese

Applicant

And

Ms Benvenuto

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The parties remain in dispute as to the ongoing parenting arrangements in respect of B born in 2012 (“the child”).

2. On 16 September 2016 orders were made for the recovery of the child and her placement in the primary care of the father.

3. On 15 November 2016 it was ordered until further order that the child live with the father and spend time with the mother from 9 am on Monday to 5 pm on Tuesday and each alternate week thereafter and from 9 am on Friday to 5 pm on Saturday and each alternate week thereafter.

4. The orders provided for the parties to do all things necessary to enrol the child at L School and M School.

5. At the time of the order the child was four years of age. The parties identified that they were not able to reach agreement as to where the child would attend school.

6. During their relationship the parties had agreed upon L School but the change in the primary care arrangements for the child promoted the father to consider a school that was geographically close to his residence and was also considered to be more culturally aligned with the European heritage of the parties.

7. By Application in a Case filed 16 August 2017 and amended by further Application on 9 October 2017, the father sought orders that the child attend M School from the commencement of the 2018 academic year, that she spend time with the mother from the conclusion of school on Monday to the conclusion of school on the following Tuesday and each alternate week thereafter and from the conclusion of school on Friday to 3 pm on Saturday and each alternate week thereafter.

8. Whilst the father was concerned as to the arrangements for the child to spend time with each of the parties on Christmas Day, the parties were ultimately able to reach agreement.  The child will spend time with the mother from 4 pm on 24 December 2017 to 4 pm on 25 December 2017 and with the father from the conclusion of the mother’s time to 4 pm on 26 December 2017.

9. The mother filed a Response on 2 November 2017 and opposed the father’s application and sought orders that the child attend L School.

10. She promoted a shared care parenting arrangement, but in the alternative that the child would live with the father and spend time with the mother from 4 pm each Friday until 11 am on Sunday.

11. As discussed, the parties were able to reach agreement as to arrangements in respect of Christmas Day 2017.  The balance of the mother’s application was not considered to have any level of urgency and given an indication by the Court that it was likely to be an unnecessary use of Court time to determine arrangements for the child on New Year’s Eve, the mother did not press the balance of her application.

12. The conduct of the proceedings was also influenced by the matter being listed for a first day hearing on 15 December 2017 with an anticipated trial date in March or April 2018.

13. The father was represented, the mother appeared as a self-represented litigant and whilst she did not seek to adjourn the interim proceedings, advised the Court that she was hopeful that a successful grant of legal aid would enable her to be represented for the final hearing.

THE FATHER’S APPLICATION

1. The unusual background to the matter is highlighted by an assertion that between November 2016 and February 2017 the mother spent time with the child on only eight occasions.  Between February and August 2017 the father contends that the mother has not spent any time with the child.

2. The mother does not disagree with the father’s chronology and in her affidavit filed 2 November 2017 sets out the various personal circumstances that cumulatively resulted in her spending little or no time with the child.

3. She has now resumed time and whilst acknowledging that it would not have been to the child’s advantage for there to be such a lengthy suspension of her relationship with the mother, she now wishes to rebuild that relationship.  She contends that she has a strong bond and that two nights per fortnight is inadequate.

4. The father seeks that the child commence at M School because the school “has a strong connection to the Italian culture”.

5. The school is also significantly closer to the father’s home than L School.

6. The father opposes the mother’s application to increase the child’s time with her, primarily based upon the significant period when no time was taken and a concern that the father has as to the mother’s commitment in spending regular time with the child.

7. The father is also concerned that no evidence has been provided to the Court as to the mother’s preparedness to undertake the recommendations made by the family consultant that she undergo counselling.

8. Each of the parties made allegations as to the appropriateness of the care arrangements in their separate homes.

THE MOTHER’S APPLICATION

1. The mother argues that the parties selected L School as the most appropriate school for the child to attend given that it is a feeder school for children enrolled at the child’s kindergarten at Suburb K.

2. Whilst there is no disagreement between the parties as to the promotion of the child’s Italian heritage, the mother considers that it was not a primary focus of the parties when they were together and whilst the child has been baptized, Religious observance was not a significant of either their lives together or their reasonable expectations for the child.

3. She agrees that M School is closer to the father, but that L school is closer to her home.

DISCUSSION

1. Whilst the issues between the parties are of narrow compass, nonetheless they need to be decided so that there is certainty as to the child’s school arrangements in the short term.

2. It is of clear benefit to the child that the mother has now resumed an involvement with her and the extent to which the mother maintains a commitment to spend time with the child will be a matter of her choosing, but any refusal, neglect or reluctance by the mother to maintain regular engagement will be the subject of adverse comment by the father.

3. There does need to be some consideration to a change in the current orders.

4. In considering what arrangements should be put in place for the child on an interim basis, I bring to account that the best interests of the child need to be the paramount consideration and that I am guided in that endeavour by reference to the provisions of s 60CC of the Family Law Act 1975 (Cth) (“the Act”). I do not consider that this is a child at risk. The primary consideration which is central to the implementation of the objects of the Act is the maintenance of a meaningful relationship between the child and her parents.

5. Whilst each of the parties makes certain allegations as to the care arrangements for the child, the evidence is scant and I am not able to make a determination on an interim basis.

6. The immediate circumstance of the child is complicated by the proximity to the Christmas holiday period leading up to the commencement of the child in formal school education in 2018.

7. I have made it clear to the parties that wherever the child may attend school, given her age it should not be assumed that any such order would pre-determine the future arrangements.

8. I consider that it would be premature to alter the primary care arrangements that currently exist.  The child has remained in the father’s care for a substantial period of time.  The Court does not have the advantage of an updated family report and I consider that the matters raised by the mother are not at a level that would derogate from a finding that the child is being well cared for in the father’s home.

9. The concern is that a dramatic change in the child’s living arrangements might be adverse to her best interests if at trial the evidence promotes an outcome that would require another significant change.

10. There is some basis to increase the child’s time with the mother in a measured fashion.  There is advantage to the child’s relationship with her mother being fostered and whilst the primary concern of the father is to question the mother’s commitment, any refusal by the mother to take advantage of the orders to spend time with the child would be a significant factor to be brought to account.

11. At present the child spends one night each week with the mother.  I propose to put in place orders that would provide for the child to spend time with the mother each alternate weekend from the conclusion of school (or 3 pm if not a school day) to 6 pm on the following Sunday and each alternate weekend thereafter and from Thursday at the conclusion of school (or 3 pm if not a school day) to the commencement of school on Friday (or 6 pm if not a school day) in the intervening week thereafter.

12. Noting that the Christmas school holidays are imminent, I propose to increase the mother’s weekend time by two nights during this period, but otherwise suspend the order on the intervening week.

13. The parties are agreed as to the arrangements for the child over Christmas.

14. Given that the primary care will remain with the father, it is reasonable that the father’s greater commitment to taking the child to and from school should dictate that the child should attend M School subject to further order.

CONCLUSION

1. I make orders as appear at the commencement of these reasons.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 17 November 2017.

Associate: 

Date:  15 November 2017