Petersen and Sands

[2007] FamCA 1473

FAMILY COURT OF AUSTRALIA

PETERSEN & SANDS [2007] FamCA 1473

FAMILY LAW – CHILDREN – Application for minor variations to parenting orders – Change to orders justified by changes in circumstances – Children’s best interests are the paramount consideration – Orders varied 

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286

APPLICANT: Ms Petersen

RESPONDENT: Mr Sands

FILE NUMBER: NCC 2551 of 2007

DATE DELIVERED: 22 August 2007

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Ryan

HEARING DATE: 29 June 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms J Olsen as Agent on behalf of Paul Stubbs Law Office

SOLICITOR FOR THE RESPONDENT: Mr P Hamilton as Agent on behalf of Donovan Oates Hannaford

Orders

1. That Orders 4 and 7 made on 1 May 2002 at M Local Court are discharged.

2. That the Father shall spend time and communicate with the children C born … April 1993, D born … February 1994, J born … September 1996 and E born … September 1996 as follows:

   (a)During the Christmas school holiday periods for the first half of the school holidays when Christmas Day occurs in even numbered years, and for the second half of the school holidays when Christmas Day occurs in odd numbered years.

   (b)On those occasions when the Father has the children during the second half of the Christmas school holidays, he shall return the children to the Mother at 6.00 pm two days prior to the end of the school holidays.

   (c)During the autumn, winter and spring school holiday periods, for the first half of the school holidays in odd numbered years and for the second half of the school holidays in even numbered years.

   (d)If Easter does not fall during the end of term school holidays, from 6.00 pm on the day that school concludes to 6.00 pm the day before school resumes in those years when the children were not with the Father for the previous Easter.

   (e)Every second weekend from 6.00 pm Friday until 6.00 pm Sunday:

   (i)on the first weekend after the completion of each school holiday in odd numbered years;  and

   (ii)on the second weekend after the completion of each school holiday in even numbered years.

   (f)On Father’s Day from 9.00 am until 6.00 pm.

   (g)       Liberal telephone communication including:

   (i)on the weekends the children are not spending time with their Father;

   (ii)on the Father’s birthday if the children are not spending time with the Father;

   (iii)on the children’s birthdays if the children are not spending time with the Father.

   (h)       At such other time/s as agreed in writing between the parties.

3. In the event the children are spending time with the Father on the Mother’s Day weekend, on that occasion he shall return the children to the Mother at 9.00 am on Mother’s Day.

4. Alternate weekend periods during which the children spend time with their Father are suspended during school holidays.

5. For the purpose of implementing the children’s changeover between their parents, the Mother shall deliver the children to the Father at the McDonald’s restaurant at M and he shall return them to her at the same place.

6. On weekends during which the children are in their Father’s care, he shall ensure they attend competition sports games and, if a child is enrolled in it, Pathfinders activities.

7. In the event one of the children has a competition sports or Pathfinders commitment which takes up the majority of a weekend, the Mother shall inform the Father in writing (which includes SMS) no less than one week prior to the weekend. By no later than 4.00 pm on the Thursday immediately preceding the Father’s weekend, he will advise the Mother if he elects to forego his weekend with the children and, in lieu, spend time with the children for the two weekends immediately following.

8. That pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

9. That all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P) NCM 2872 of 2006

MS PETERSEN

Applicant

And

MR SANDS

Respondent

REASONS FOR JUDGMENT

1. This is an application by the mother to vary parenting orders made in the M Local Court on 1 May 2002.  These orders have been registered in this court and the court thus has jurisdiction to grant the relief applied for.

2. The proceedings relate to the parties four children, C born in April 1993, D born in February 1994 and twins J and E born in September 1996.  Since the parties separation in September 1999 the children have lived with their mother and spent time with their father.  In the main, the children have spent time with their father each alternate weekend and for half of each school holidays.  Since at least May 2002 the children’s weekends with their father have started at 4.00 pm Friday and ended at 6.30 pm Sunday.  The venue for the children’s changeover has been the mother’s home.

3. In mid 2006 the mother obtained fulltime employment as a shop assistant where she works Monday to Friday from 9.00 am to 5.00 pm.  The mother seeks to change the collection and return arrangements, including the changeover time, so that she is present when the children go to their father.  Having first discussed her proposal to vary the time that the children go with their father to 6.00 pm, when the parties could not agree the mother commenced these proceedings. At the same time, the mother took the opportunity to propose minor variations to the operative orders which take into account the children’s changed circumstances.  Although most of these changes are agreed, the parties disagree upon the mother’s proposals to change the changeover place and also whether the father should take the children to their usual sporting and special extra curricular activities on the weekends that they are with him.

4. The children’s father agrees that because the children are five years older than they were when the last parenting orders were made, minor variations to the ordered arrangements are appropriate. Concerning his weekends with the children, he says the children are old enough to come to him directly from school on Fridays and return there on Mondays.  In addition to providing him with an opportunity for greater involvement in the children’s lives during school term, he points out that this arrangement achieves the mother’s desired outcome of limiting parental interaction at changeover.  It also ensures that, irrespective of the mother’s work commitments, the children are fully supervised. The father seeks to be relieved of the obligation to take the children to sports and other extra curricular activities as this interferes with his time with the children and from time to time brings him into conflict when a child is reluctant to attend.  The father points out that once or twice a year the children’s sports and extra curricular activities effectively take up an entire weekend, which means he has little time with them.  During the course of the hearing I made the suggestion that if a child or children had a full weekend sporting or extra curricular activity the father’s weekend which coincides with those activities could be suspended in favour of him having the children the next two consecutive weekends. The parties agree that orders are made in accordance with this suggestion.

The hearing

1. These proceedings were transferred from the Federal Magistrate’s Court to the Family Court on the day they were listed for final hearing.  When the hearing commenced in the Family Court, the parties agreed the case would be determined having regard to the parties’ affidavit material and without cross examination. The Court received helpful written submissions, which submissions were supplemented by oral addresses.  Given the relatively minor nature of the issues to be decided and the relatively inconsequential factual disputes, this was an effective manner by which to proceed.

2. The applicant mother relied upon her amended application filed 19 June 2007 and her affidavits filed 30 March 2007 and 19 June 2007.

3. The respondent father relied upon his amended response filed 15 June 2007 and his affidavits filed 30 April 2007 and 15 June 2007. 

The governing law

1. Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64A). They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exists reasonable grounds to conclude that a parent, or a person who lives with a parent of the child has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DB). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.

2. Section 60B sets out the objects of Pt VII and the principles which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensures that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective points the way to an optimum outcome. Where there are no countervailing factors, the s 60B principles may be decisive.  Section 60B is set out below.

   1.The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;  and

   (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;  and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential;  and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;  and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);  and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children;  and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   3.For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)      to maintain a connection with that culture;  and

   (b)      to have the support, opportunity and encouragement necessary:

   (i)       to explore the full extent of that culture, consistent   with the child’s age and developmental level and the             child’s views; and

   (ii)      to develop a positive appreciation of that culture.

3. In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC.  Section 60CC(1) contains two primary considerations.  The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)).  The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).  Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as having particular importance. 

4. Having considered the primary considerations, the Court must take into account the thirteen additional considerations set out in s 60CC(3).  Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case.  Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”.  This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities: s 60CC(4).  In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence: s 60CG.  Ultimately the weight attached to each factor is a matter for the Court’s discretion.

5. The sequence of determining parenting orders is important.  If the court is satisfied that a child’s parents are to have equal shared parenting responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with its parents (s 65DAA).  In the context of s 65DAA 'consider' means a consideration tending to a result, or to consider positively the making of an order. Goode & Goode (2006) FLC 93-286. The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in s 65DAA(3) and occurs where:

   (1)The time the child spends with the parent includes both:

   (i)days that fall on weekends and holidays;  and

   (ii)days that do not fall on weekends or holidays;  and

   (2)the time the child spends with the parent allows the parent to be involved in:

   (i)the child’s daily routine;  and

   (ii)occasions and events that are of particular significance to the child;  and

   (3)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

6. The child’s best interests remain the overriding consideration.

7. Where neither concept delivers an outcome which promotes the child’s best interests the court then determines the parenting applications as outlined above.   Similarly where the Court has decided against maintaining equal shared.

Applying the law to the relevant facts

1. The parties agree that they will continue to exercise jointly parental responsibility for the children.

2. Neither party proposes that the children’s time is divided equally between them.  The real issue is whether they should have substantial and significant time with the father or an arrangement as close to this as possible.

3. There appears to be no issue that the children enjoy good and meaningful relationships with each of their parents.  From the father’s perspective the key advantage arising from his proposals is that the children will spend more time with him and his relationship with them will be commensurately enriched.  This is a likely outcome provided the father meets the children’s needs while they are in his care.  If for some reason their needs are unmet the likely outcome of increasing his time with them is that these relationships may be compromised.

4. There are no s 60CC(2)(b) issues which require consideration.

5. I will consider the additional considerations within the context of each of the outstanding issues.  Because of the nature of the issues they will be discussed separately.

6. The mother and children live in M.  Nobody else lives with them.  The mother financially supports the children from her income earned as a shop assistant.  The father contributes $12.00 per month child support.  Although this is all he can afford it could not be suggested that this is a meaningful contribution to the children’s necessary expenses.

7. C attends S School and the other three children attend M School.  The children travel to and from school by bus, which involves a change in buses in each direction.  J has sports on Fridays which requires him to wear his sports uniform and for the rest of the week he wears his formal school uniform.  C, D and E have sport on Mondays which requires that they wear their sports uniforms Mondays and their school uniforms for the rest of the week.  This means that if the children go to and from their father’s home directly from school on the weekends they are with him, the children must take a second set of uniforms.  In addition, they must take whatever additional books required for two rather than one day’s classes.

8. There is no suggestion the mother is able to afford numerous duplicate uniforms for the children and I infer she cannot.  The mother says that “it is particularly important that I have the opportunity on weekends to wash the children’s school clothing so that they have fresh school clothing for the entire following week”. If the father’s proposals are implemented, the mother is concerned that when the children return from school on Monday nights she will have four sets of school and sports uniforms to wash and iron for the remaining week.  Adding this to all the other usual housework she has as a single working parent caring for four children, she says is too much and the probability is that the children will not have clean uniforms most of the time. I accept her evidence.

9. The father lives in F.  F is approximately six kilometres from the mother’s home and takes about 15 minutes driving time.  The father is unemployed and there is no evidence which suggests he is planning to resume paid employment.  I infer he is not.  Since separation, the father has driven back and forth between the parties’ home collecting the children and returning them to their mother at the beginning and end of their time with him.  Even if the father succeeds on this aspect of his application, it means that he will have overwhelmingly responsibility for the effort involved in transporting the children between their parents.  However, as the father has far greater time available to him than the mother does and she carries a greater overall share of the effort in caring for the children, it is not unreasonable that in this aspect of the children’s care the father is overwhelmingly responsible for it.  Ordering that he does all of the transporting of the children’s comparatively causes him little inconvenience.

1. The parties agree that changeovers are marred by unpleasant verbal exchanges between them.  The mother gives greater details of the types of exchanges which occur, which I have no difficulty accepting, are distressing for the children.  There is no dispute that the children have heard their father call their mother “a bitch” and tell her she belongs in the gutter.  The parties also agree that their poor relationship is unlikely to improve and that there exists a continuing risk of hostile exchanges between them during changeovers.  For this reason, the mother says changeover should no longer take place at her home and that a neutral, public place is a preferable venue.  This is because if other people are present, peer pressure will see the protagonist, possibly both parties, behave in a more socially acceptable fashion.  In response to the mother’s suggestion of McDonalds at M, the father emphasises the obvious advantage that the parties will not see each other if the children travel between the homes directly from school.  In the alternative, he suggests changeover at his mother’s place.  As the father’s mother lives next door to him, this does not provide the neutral, public venue which should lead to improved behaviour.  The risk of continuing verbally hostile exchanges is as high using the father’s mother’s home as if the present situation continues. Between the two remaining options, school changeover virtually eliminates the risk of the parties seeing each other and it is thus the superior venue.  There are other factors, however, which militate against this option.

2. Historically, the children have completed their homework at their mother’s home.  They arrive from school, change, debrief and prepare to go to their father’s home.  Now that she is working the mother arranges for a friend to care for the children until the father arrives.  At the father’s request, the children do not take clothes or belongings with them to his home.  Weekend homework is done on Sunday nights after the children return.  From the children’s point of view, it appears that this arrangement has worked well.

3. The father lives in a caravan on vacant land.  There is a canvas annexe attached to the caravan. Although the mother has not visited the caravan since late 1999, the children tell her their concerns about the type of accommodation they live in when with their father.  The mother has been told that the shower floor is rotten.  There is a “port-a-potty” in the caravan which is inadequate for five people’s toileting and which the children consider unhygienic and inappropriate. From time to time the children sleep at their paternal grandmother’s home on the adjacent property.  There is no toilet, bathroom or hot water in this property.  Notwithstanding the children’s concerns, the mother agrees that during school holidays the children should spend half of the holidays with their father, which means the accommodation I have just described is acceptable to her and the children for periods up to as long as three weeks.  The father says that it follows that if the accommodation is acceptable for three weeks, adding an additional evening to his weekends could not involve exposing the children to an unsatisfactory living environment.  Whilst there is some force in this submission, it ignores that during school term the children’s needs differ.  For example, all four children will need private places where they can complete homework.  The father would need to be in a position to wash, dry and iron four sets of school uniforms each weekend.  I am not satisfied that the father is in a position to address these exigencies now or in the near future.  These practical aspects of parenting indicate that extending children’s time with their father to include Sunday nights may well compromise the children educationally. This being the case I must consider the alternate proposals for changeover.

4. One option is to make no changes to the orders.  However, this means the mother must continue to rely upon friends to supervise the children after school and ensure that they are ready for their father.  Because he is not always on time, his delay inconveniences the children as well as their minder.  It does not seem likely that such an arrangement could continue indefinitely. It is preferable that the children have an opportunity to see their mother, albeit briefly, before they leave for their father’s.  This has the advantage of ensuring she knows what homework is outstanding for Sunday night and basically continues an arrangement which has worked reasonably well for a number of years.  The only variables are a slightly later commencement time, which should have no effect upon the children’s relationship with the father, and facilitates changeover at a public place.  The later being a compromise made in the interests of peaceful and timely changeovers.  

5. The 2002 orders required the parties to confer concerning the children’s long term interests, which includes their sporting activities.  As the years have passed, the parties’ ability to communicate has deteriorated so that by about 12 months ago the mother stopped discussing the children with their father.  There is no utility in trying to discern how it is that the parties’ ability to communicate deteriorated as the point has been reached where their ability to retreat from the current impasse is virtually non existent.  Consequently, the mother has continued to enrol the children in sports and other extra curricular activities which she and the children have expected the father to facilitate whilst the children are with him.  It is the mother’s case that long before the parties’ ability to communicate died, the father at best made ad hoc attempts to take the children to their weekend sports commitments.  The father says over the years he has regularly taken the children to their sports and extra curricular activities and it is only recently that he has stopped doing so.  The father says he has not taken the children to sports on those occasions when they have not wanted to attend.  I cannot determine how frequently the father has taken the children to sports games. 

6. Team sports and extra curricular activities create a setting in which children can realise they have responsibilities to others, particularly their team mates.  Sports and extra curricular activities provide a useful forum for helping children learn valuable lessons in acceptable social behaviour and enhance standards of citizenship.  As children become older, it is not at all uncommon to see their interest in various activities wane.  In separated families it is also quite common that where children have limited time with one parent, they and the parent can regard sports and other activities as an intrusion.  The father believes this is the situation he and the children are in.  The mother says the children want to attend and are frustrated by the father’s lack of co-operation.

7. Until this year all of the children have played soccer with their local soccer club.  The soccer season lasts from March through to September, during which period the children are expected to play each Saturday.  This year C elected to play hockey in lieu of soccer and also attend Saturday martial arts classes. J attends Pathfinders, an organisation skin to Scouts or the Duke of Edinburgh scheme.  The father agrees that the children’s current activities are worthwhile.  However, he is aggrieved that the mother enrolled the children without first discussing these activities with him.  If the mother’s evidence concerning her attempts to discuss the children’s sporting and social commitments with the father is correct, it is easy to understand why she gave up trying to engage him.  On her evidence, these discussions have met with indifference and comments such as “just shut up. There’re with me this weekend”. As a general proposition, the father says that provided the children wish to attend sports, soccer, hockey, rugby league and Pathfinders, he agrees that these are activities from which the children benefit.  If the parties were able to discuss the children, I would agree with the father’s proposition that before enrolling them in any of these activities, the mother should first discuss the possibility with him.  Unfortunately discussion is futile.  In order for the children to attend sports and Pathfinders, the mother needs to be able to progress their enrolments without discussing them with the father.  Sadly, it appears that if discussion and consent is required, the likelihood is that the children may miss out altogether.  As this is inconsistent with the children’s interests, the order requiring the mother to discuss these issues is discharged.  As a consequence the mother does not need to consult the father in relation to the children’s continued enrolment in those activities, including soccer, which they have historically enjoyed.  

8. Organising four children to attend sports games on Saturdays is quite demanding.  It is feasible that games may clash in the sense of the children needing to be at different sports grounds at the same time.  In vast numbers, parents face these difficulties most Saturdays.  It is common place to see parents making arrangements with other parents of children in the same team to share transport.  In some instances parents deliver children to one field, drive to another, deliver the children and make the same journey in reverse.  I can see no good reason why children whose parents are separated should be deprived of the opportunity to be fully functioning team members in sports in which they participate.  The father owns a car and is able to arrange the children’s attendance at their various weekend sports and activities.  Irrespective of whether a child wishes to attend a particular game, unless the child is ill or has a more pressing family commitment which clashes with attendance, the father shall ensure that the children attend.  The same applies to J’s attendance at Pathfinder activities.  When one has regard to J’s 2007 Pathfinder schedule, this suggests that only on three or four weekends a year is the father likely to need to ensure J attends a weekend Pathfinders event.

Conclusion

1. Although the issues requiring determination are seemingly minor, their resolution is quite finely balanced.  If the children’s views on the issues were clear this would have assisted my decision as their ages suggest that their views would have warranted reasonable weight.  It is reasonable that the parties appear to have decided that involving the children more deeply in these proceedings was undesirable. 

2. The effect of my orders is that the children will have neither equal or significant and substantial time with their father.  They will, however, continue to see him with the frequency they have enjoyed for at least the past five years.  The evidence suggests this has been an arrangement that has basically worked well.  I am not persuaded that increasing the children’s time with the father is likely to enhance their relationships with him and remain concerned that doing so may compromise them educationally.  The only appropriate changes to the existing orders are minor adjustments about which the effect of changing their circumstances is inconsequential. These changes enable easier change-overs, ensure the children’s continued attendance at sports and Pathfinders and give the mother the opportunity to make any necessary arrangements with the children before they go their father.  To a considerable degree these later considerations are driven by practical considerations.

3. For these reasons I make the orders identified in the beginning of this judgment.  I am satisfied they are in the children’s best interests.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate

Date:  22 August 2007