Pierce and Pierce

FEDERAL CIRCUIT COURT OF AUSTRALIA

PIERCE & PIERCE

[2017] FCCA 886

Catchwords:
FAMILY LAW – Interim parenting – orders in the best interests of children.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:

Goode & Goode [2006] FamCA 1346
MRR v GR [2010] HCA 4

Applicant:

MR PIERCE

Respondent:

MS PIERCE

File Number:

WOC 778 of 2016

Judgment of:

Judge Altobelli

Hearing date:

10 April 2017

Date of Last Submission:

10 April 2017

Delivered at:

Sydney

Delivered on:

21 April 2017

REPRESENTATION

Counsel for the Applicant:

Ms Eldershaw

Solicitors for the Applicant:

Southern Waters Legal

Solicitors for the Respondent:

Hamish Cumming

ORDERS

THE COURT ORDERS PENDING FURTHER ORDER THAT:

The parties have equal shared parental responsibility for all decisions of a major long term nature for the children, X born (omitted) 2012 and Y born (omitted) 2014 (“the children”).
The children live with the Mother.
Except as otherwise agreed, the Father spend time with the children as follows:
(a)Each Tuesday from 4:30pm to 6:30pm if it is a school day and 9am to 4pm if it is a non-school day, with changeover at the Father’s home on a school day, but on non-school days the Father is to collect the children from the Mother’s home at the start of the time, and the Mother to collect the children from the Father’s home at the conclusion;
(b)Each Saturday from 9am to 4pm with the Father to collect the children from the Mother’s home and Mother to collect the children from the Father’s home at the conclusion of time except as regards to Order 3(c) below;
(c)Each alternate Sunday from 9am to 4pm, with the Father is to collect the children from the Maternal Grandmother’s home at Sylvania at 9am on the alternate Saturday and on Sunday, the Father is to collect the children from the Maternal Grandmother’s home at 9am Sunday and with the Mother to collect the children from the Father’s home at 4pm Sunday;
(d)During the school holidays, each Thursday between 9am to 4pm with the Father to collect the children from the Mother’s home at start of time and the Mother to collect the children from the Father’s home at the end of time.
Except as otherwise agreed, the children shall spend time with the Father on the following special occasions:
(a)On each child’s birthday ((omitted) and (omitted)) and the Father’s birthday ((omitted)) from 4:30pm to 6:30pm if the birthday falls on a week day and from 2pm to 5pm if the birthday falls on a weekend and for the purposes of this Order, if the birthday falls on a week day changeover shall occur at the home of the Father;
(b)From 9am to 4pm on Father’s Day;
(c)From 2pm to 7pm on Christmas Day; and
(d)For the purposes of this Order, unless otherwise stated, the Mother shall deliver the children to and collect the children from the Father’s residence at the commencement of their time with him.
Except otherwise agreed, if the children are not otherwise in the Mother’s care pursuant to these Orders, the children shall spend time with her:
(a)On each child’s birthday ((omitted) and (omitted)) except when they are in the Father’s care pursuant to Order 4 above and the Mother’s birthday ((omitted)) from 4:30pm to 6:30pm if the birthday falls on a week day and from 2pm to 5pm if the birthday falls on a weekend;
(b)From 9am to 4pm on Mother’s day;
(c)From 9am to 2pm on Christmas Day; and
(d)For the purposes of this Order, the father shall deliver the children to the Mother’s residence at the commencement of their time with her and the mother shall return the children to the father’s residence at the conclusion of the time.
Each party shall do all acts and things to facilitate the children telephoning or video calling the other parent as requested by the child.
Each party shall ensure that the other is kept informed of:
(a)Any medical problems or illnesses suffered by the children while in their care;
(b)Any medication that has been prescribed for the children;
(c)Any social, school or religious functions which the children is to attend; and
(d)Any other matter relevant to the children’s welfare.
Each party advise the other party and keep the other party advised of their current address and telephone contact numbers (including both landline and mobile phone number if applicable) and advised the other party of any changes to these details within seven days of such change occurring.
During any period referred to in these orders, in the event of the children being hospitalised or receiving urgent medical attention, the parent spending time with the child shall notify the other parent immediately the first contact with either the medical practitioner, medical centre or hospital.
Without admissions, each party be restrained by injunction from:
(a)Criticising or making any disparaging comments about the other parent or member of that parent’s family in the presence or hearing of the children;
(b)Discussing these proceedings with the children or having such a discussion with another person in the presence or hearing of the children.
Without admissions, the Father shall ensure that the Paternal Grandmother, Ms E, does not come into contact with the children.
The matter be adjourned to 20 June 2017 at 9:30am for Mention.
The parties are at liberty to file terms in the Registry for the purposes of orders being made in Chambers in relation to the preparation of a Family Report.

THE COURT NOTES THAT:

(a)The Father did not press his interim application in regards to the children relocating to the (omitted) area.
(b)A Family Report may be required in this matter and has invited the parties to consider whether it is possible it can be privately arranged.
(c)The Child X is to commence Kindergarten in 2018 and a decision as to his school may need to be made during the course of 2017. In the event that either party wishes to file an Application in a Case concerning schooling, he or she shall do so by no later than 30 August 2017.
(d)Each party is at liberty to make enquiries and place X on any waiting list for schools as they wish provided that:
(i)No step is taken to enrol him in a school other then with the agreement of the other party or further order of the Court; and
(ii)The other parent is promptly informed of X’s name being placed with a school and all reasonable particulars about the school(s) including the quantum of any fees and related expenses such as uniforms, required equipment and compulsory parent contributions.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 778 of 2016

MR PIERCE

Applicant

And

MS PIERCE

Respondent

ORAL REASONS FOR JUDGMENT

Introduction

This case is about two children: X, who is four and a half and his sister Y, who is two years old. The children’s father is the Applicant and their mother the Respondent. The Mother is 35 years old. The Father is 32 years old. They both work in (occupation omitted) positions. The parents married in 2010 and separated in 2014. Y was, in fact, born after separation.
The Father started spending time with X a few weeks after separation, but on the basis of an undertaking he gave in relation to his mother, the Paternal Grandmother. That undertaking was that the Paternal Grandmother will not be present when he spends time with the children. That is one of the issues for the Court to decide in this interim hearing. The Paternal Grandmother, in fact, participated in the interim hearing as a result of a number of subpoenas that had been issued in respect of her, but where she had not been given the requisite notice. The Paternal Grandmother, in fact, indicated to the Court that she intended to intervene in these proceedings, presumably to seek orders for the children to spend time with her.

Material before the Court

The Court had before it quite a considerable volume of material. The material filed and relied on by the parties is referred to in the case outline documents that were provided and I list them below.
The Applicant relied on the following material:
a)Application in a Case filed 8 February 2017;
b)Affidavit of Mr Pierce (Mr Pierce) sworn and filed 23 March 2017; and
c)Child Dispute Conference Memorandum dated 30 January 2017.
The Respondent relied on the following material:
a)Amended Response filed 31 March 2017;
b)Affidavit of Ms Pierce sworn and filed 31 March 2017; and
c)Child Dispute Conference Memorandum dated 30 January 2017.

Chronologies

The Applicant’s case outline document contained the following chronology:

(omitted) 1981     Mother born (currently aged 35).
(omitted) 1985     Father born (currently aged 32).
(omitted) 2010               Parties marry and do not live together prior to marriage.
(omitted) 2012               X is born.
9 June 2014Parties separate.
July 2014Mother stops Father spending time with X until 6 August 2014 following the demand of an undertaking in relation to the paternal grandmother.
Father gives undertaking that his mother will not be in attendance when he has the children.

6 August 2014                 Mother permits Father to spend time with X for 2 hours each Wednesday and for 4 hours each Saturday.
(omitted) 2014               Y is born. Following Y’s birth, Father is permitted only to spend about 10 minutes with Y at Mother’s residence when he collects and returns X.
23 November 2015        Section 60I certificate issued.
January 2016                   Father finds out that the Mother enrolled X in pre-school in 2015 without consultation with the Father.
March 2016Mother permits Father to spend time with X for 2 hours each Tuesday and for 7 hours each Saturday and spend time with Y for about 10 minutes at her house.
21 March 2016               X is diagnosed with Autism Spectrum Disorder.
4 August 2016                 Father files Initiating Application.
Late August mid-2016     Mother permits Father to spend time with Y from 9am to 11am on the Saturdays which he spends time with X.
2 December 2016           Mother sells her property in (omitted).
5 December 2016           Mother refuses to allow Y to spend time with the Father in circumstances where X was not spending time with the Father.
13 December 2016        Matter listed before the Court for first return date. Orders made for the parties to attend a Child Dispute Conference. No mention of relocation is made by the Mother.
12 January 2017             The Mother informs the Father that she is relocating but does not disclose where.
19 January 2017             Mother discloses to the Father that she is relocating to (omitted).
30 January 2017             Parties attend Child Dispute Conference.
Late Jan/early Feb 2017 Mother relocates from (omitted) to (omitted) (45 to 50km away). Mother permits Father to spend time with Y from 9am to 4pm, the same as X however Father is unable to utilise his time on Tuesdays. Father currently responsible for all collection and returns.

The Respondent’s case outline document also contained a chronology:

(omitted) 1981	DOB of the mother (currently aged 35).
(omitted) 1985	DOB of the father (currently aged 32).
(omitted) 2007	Parties commence relationship.
(omitted) 2010	Date of marriage.
(omitted) 2012	DOB of the child, X (currently aged 4 ½ years).
(omitted) 2014	Date of final separation. Father moves out of former matrimonial home.
Approx July 2014–Jan 2016	X spends time with the father, by agreement: - Each Wednesday from 4.30 pm–6.30 pm and - Each Saturday from 8am–12 noon.
(omitted) 2014	Father provides undertaking not to take X to his parents’ home, and not to bring X into contact with the paternal grandmother at all, pending further written agreement.
(omitted) 2014	DOB of the child, Y (currently aged 2 years 5 months).
Approx Nov 2014–Sept 2016	Y spends time with the father for short periods at the mother’s home when picking X up and dropping X off.
Jan 2016	X commences spending time with the father by agreement: - Each Tuesday from 4.30 pm–6.30 pm and - Each Saturday from 9am–4pm.
21/3/16	X is diagnosed with Autism Spectrum Disorder (ASD).
Sept 2016	Y commences spending time with the father away from the mother’s home. By agreement, Y starts attending with X each Saturday from 9am–11am.
4/8/16	Father files Initiating Application seeking final parenting orders only.
3/12/16	Incident occurs at changeover during which the father verbally abuses the mother in the presence of the children.
20/12/16	By agreement, Y starts attending with X each Tuesday from 4.30 pm – 6.30 pm (in addition to Saturday 9 am – 11 am).
12/1/17	Mother informs father of her intention to move from (omitted).
27/1/17	Mother and children move from (omitted) to (omitted). By agreement, Y starts attending with X each Saturday from 9am to 4pm.
8/2/17	Father files Application in a Case seeking orders for the return of the children to the (omitted) and orders in relation to time with the children.
16/2/17	X commences attending (omitted) Pre-School two days per week.
10/4/17	Interim hearing before Judge Altobelli.

The Applicable Law

The applicable law is, of course, Part VII of the Family Law Act (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(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.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)     When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)     The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)     abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)     family violence.
(3)     When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)     The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)     If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)     If:
(a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a)     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
(b)     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
(c) 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.
(4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)     In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)     how far apart the parents live from each other; and
(b)     the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)     the impact that an arrangement of that kind would have on the child; and
(e)     such other matters as the court considers relevant.

Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.

The Case Law

In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

Discussion

Since separation the Father has spent increasing time with the children. For example, he started off having two hours each Wednesday and then four hours each Saturday with X. When Y was born, he started off spending a few minutes with her, but over time this extended to a few hours, coinciding with X’s time. Currently both children spend time with their father each Saturday between 9am and 4pm. The Father believes that this amount of time is not adequate from the children’s perspective.
The Mother believes that this time is adequate for the time being having regard to the stages of the children’s development and having regard to X’s special needs given that he has been diagnosed as suffering from autism spectrum disorder. She proposes a gradual incremental increase in the Father’s time, but he proposes a much more significant, quicker, but nonetheless, incremental increase in his time.
What becomes apparent from looking at the material before the Court, however, is that the Father’s time with the children has most definitely increased since the date of separation and that makes somewhat tenuous his assertion in submissions and in his evidence that the Mother is unwilling to facilitate his relationship with the children. The problem with that submission is that it is plainly inconsistent with the agreed facts in this case.
X’s diagnosis with autism spectrum disorder appears to have been made in March last year. Despite the implied, if not express assertion by the Mother that the Father has not accepted this diagnosis and, therefore its consequences, the objective evidence is not consistent with that submission. Indeed, it now appears common ground that X has special needs, the dispute being about how, if at all, having regard to those special needs, his time with his father should increase.
In January 2017 the Mother and the children relocated from (omitted) to (omitted). The Father lives in (omitted). Whilst this has not had the effect of reducing the Father’s time with the children, it has certainly exposed them to more travel time in order to spend time with the Father. One of the issues in this case is what sort of order the Court should make in relation to the Mother’s relocation. One of the orders that the Father had originally sought was that the children be ordered to return to the (omitted). That order was not pressed at the interim hearing. The Father’s proposal about this was, in effect, that the issue be adjourned to late 2017.
As it turns out, the Court does not believe that is appropriate. It could not possibly be in the best interests of these children for the issue of the Mother’s relocation to be left dangling over the Mother’s head like a Sword of Damocles whilst other issues are determined and whilst life supposedly goes on for the children and herself. The Father may seek such further interim orders as he considers appropriate. The Father may seek such orders as he considers in the children’s best interests at a final hearing. However, what the Father cannot do is elect not to press the interim relocation issue, but to leave it proverbially dangling.
Whilst the Court’s mind on this issue is by no means closed, the fact that a return of the children has not been sought now perhaps makes it more unlikely that it will be granted at some future time, but that, of course, is speculation based on the evidence presently before the Court. There may be intervening events that put a fresh light on the application. For present purposes, therefore, the issue of interim relocation is not a matter in respect of which the Court is prepared to adjudicate on and it, nonetheless, chooses not to adjudicate on it.
Having regard to the materials before the Court and the submissions made, there are really main two main issues: firstly, how much time the children should spend with their father; and secondly, what conditions, if any, should be imposed on the children spending time with the Paternal Grandmother. The second issue is more discrete and can be dealt with quite succinctly. The Father seeks no restrictions on the children coming into contact with the Paternal Grandmother. He offers, on a without-admissions basis, an undertaking that he will ensure that his mother does not come into contact with the children unless he is in the immediate presence of the children.
By contrast, the Mother seeks what appears to be a continuance of the existing arrangement, that is, that the children not be brought into contact with the Paternal Grandmother at all. In short, the Mother asserts that as a result of the Paternal Grandmother’s undisputed bipolar disorder diagnosis, there is a potential risk of harm to the children. The context of this appears once again undisputed and that is high conflict between the Father and his mother spanning a lengthy period of time. It is undisputed that the children have not spent any time with their grandmother for many years.
It is noticeable in the Father’s case that he led no evidence from the Paternal Grandmother. Indeed, this is a surprising omission. It is further noticeable that the Father himself objected to the subpoena that would have produced to the Court information about the Paternal Grandmother that might have enabled the Court to conduct its own risk assessment. Of course, the latter point is academic because the Court upheld the Paternal Grandmother’s own objection to the subpoenaed documents.
The evidence the Father does rely on, however, about the relationship with his mother is contained in paragraphs 102 to104 of his affidavit of 23 March 2017. With great respect, this evidence hardly provides an optimistic depiction of the relationship between the Father and his mother, nor does it provide much reassurance to the Court in the circumstances. It confirms the conflictual relationship between them. It does not contain a denial that provides any reassurance in relation to the allegations about the Paternal Grandmother’s alcohol use.
The Father does read, however, an affidavit from Dr D, his mother’s treating psychiatrist. Again, and with great respect, if this report was meant to provide reassurance either to the Mother or to the Court, it does not succeed. For example, where Dr D concludes that he does not believe that the Paternal Grandmother is a risk of harm to others, especially her grandchildren, he seemingly fails to appreciate that the risk that the Court is seeking to assess in this regard is not just physical, but emotional. Moreover, the good doctor does not consider the situation from the perspective of the children and how they might experience spending time with the Paternal Grandmother in the circumstances of this case.
The Court will need much more evidence than is available to it at the moment before it can consider this part of the application further. Direct evidence from the Paternal Grandmother would be helpful. A more fulsome examination of the Paternal Grandmother’s health records might also be helpful. The question of the benefit of the grandchildren spending time with the Paternal Grandmother ought not to be assumed, but needs to be the subject of evidence. The nature of the Father’s own relationship with his mother is significant. What he tells the Court about this is not reassuring. Of course, should the Paternal Grandmother make her own application, it will be dealt with on its own merits. For the time being, however, the situation will remain as it has been, that is, that the Father is not to allow the children to spend any time with or in the presence of the Paternal Grandmother.
The focus now turns to the competing proposals for the children to spend time with their father. The Father’s proposal was contained in a minute of order provided by his Counsel at the interim hearing. There was no issue, it should be noted, that the parents have equal shared parental responsibility and the children live with their mother. The Father proposed that a certain regime apply until 7 November 2017 when Y turned three, thereafter the time would further increase.
In what the Court will call stage 1, he proposed that in one week he spend time with the children each Tuesday between 4.30pm and 6.30pm on a school day or 9am to 4pm on a non-school day. In relation to X, he would spend time with his father from 9am Saturday to 4pm Sunday, and with Y from 9am to 4pm on Saturday and then 9am to 4pm on Sunday. In week 2, the children would each spend Tuesdays and Thursdays with him from 4.30pm to 6pm on school days and 9am to 4pm on non‑school days.
In what the Court will describe as stage 2, the arrangements for Tuesdays would continue, the weekend time for X would commence at 4.30pm on Friday concluding 4pm Sunday; and Y would spend from 9am to Saturday to 4pm Sunday. In week 2, the time on Tuesdays and Thursdays would continue as proposed for stage 1. Thus, in short, X would commence spending overnight time with his father immediately and Y would commence spending overnight time with her father from November this year.
The Mother proposed that the children continue to spend time with their father each Saturday between 9am and 4pm and each Tuesday from 4.30pm to 6.30pm. During the school holidays, Saturdays would remain unchanged, but Tuesdays would become 9am to 4pm. Each parent made proposals for special occasions and proposed orders in relation to changeover which will be discussed once the Court has adjudicated on the issue of progression of the children’s time with their father.
The Court declines to introduce overnight for X until there is better evidence about the potential impact on him of spending overnight time with his father and away from his mother. The basis of the Court’s decision is twofold. Firstly, in the Child Dispute Conference memorandum of 30 January 2017, both parents identified that X’s additional needs should be considered when formulating his care arrangements. Even the Father, who wanted X to start spending overnight time with him immediately, was aware that X would need specific support to transition to this arrangement.
Much to the credit of the Father, he is reported as acknowledging to the Family Consultant that he was not going to try to force X to spend overnight time with him if he was upset. Moreover, the Family Consultant recorded the parents’ agreement that communication between them is difficult and that they blame each other for this. This communication issue is unquestionably exacerbated by what is an obvious lack of trust between the parents. The inability to communicate, acknowledged by the parents, would, in this Court’s view, make it much more difficult for them to successfully navigate any issues in relation to the implementation of overnight time for X.

Secondly, the Mother’s evidence about X contained at paragraphs 40 to 45 of her affidavit of 31 March 2017 is evidence that the Court accepts in circumstances where she is better placed as a parent to make these observations about X given the Father’s limited time with him. For example, she describes X as an anxious child who does not cope well with change, who has meltdowns that distress him, who is anxious about unfamiliar environments, and is highly sensitive to noise and often covers his ears. Her observation that X thrives on consistency and routine is not an opinion but an observation that she is entitled to make as his mother and as his primary carer. Given this evidence, the Court believes that it would be most unwise to introduce such a significant change, that is, overnight time, into X’s life and routine in circumstances where so little is known about how he would adjust.
Would that his parents had better communication skills and trusted each other’s judgment better than they do. In those circumstances, the Court would have had much greater confidence in their ability to manage the difficulties associated with such a significant change in X’s life. The same reasoning applies in relation to Y. She was born after separation. The amount of time that she is spending with her father has been limited. She is still breastfeeding. Even to postpone the commencement of overnight time until she turns three is inappropriate in circumstances where the Court needs to know more about how her brother, X, will cope with overnight time.
Now, it should be noted that no part of the Court’s consideration has included the Mother’s assertion about her anxiety should the children spend overnight time or, indeed, more time with their father. The Court does not accept this assertion. It is inconsistent with the Child Dispute Conference memorandum. In any event, it is unsupported by the Mother’s evidence herself. The Court’s views about overnight time does not mean, however, that the children should not be spending time more frequently with their father but what it does suggest is that periods longer than 9am to 4pm are a developmental progression that the Court is not prepared to undertake without further expert evidence.
Thus, the Father’s proposal for 4.30pm to 6.30pm each Tuesday is appropriate. Given that he is a teacher and he has the benefit of school holidays, the Court cannot see any objection to making it 9am to 4pm on Tuesdays during school holidays and, indeed, subject to the availability of the Father, on Thursdays during school holidays as well. Turning to weekends, the children already spend Saturdays with their father. Should the Court introduce Sundays as well? The only concern that the Court has in this regard is about the impact on the children of the considerable travel that they will have to undertake in spending time with their father.
The issue of changeover becomes relevant here. But what became apparent at the interim hearing was that the children have a close relationship with the Maternal Grandmother who lives at (omitted) north of (omitted) but south of the Mother’s residence in (omitted). The concession was made at the interim hearing that the Maternal Grandmother’s accommodation contains a spare bedroom that is suitable for the children and that the Maternal Grandmother has been actively involved in the children’s lives since they were born and has a close relationship not only with them but with the Mother.
All of this makes viable the Father’s proposal that not only can the Maternal Grandmother’s home be used for changeover at times but the children could stay overnight in her home on those weekends when the children would spend both Saturday and Sunday with their father. It is significant to the Court that so little was said in opposition to this proposal on the Mother’s behalf. Indeed, the opposition would be logically difficult to make given the Mother’s own evidence about her relationship with her mum and the latter’s involvement in the children’s lives.
For present purposes, therefore, the Court believes that the use of the Maternal Grandmother’s residence on weekends makes an arrangement for contact on both Saturdays and Sundays reasonably practicable. The children would, therefore, have the benefit of frequent contact with their father without the uncertainties associated with overnight time and they could be saved the inconvenience of travel. Making it every weekend, however, would deprive the children of weekend time with their mother.
Accordingly, whilst the children can spend time with their father every Saturday, they should only spend time with their father on Sundays as well in the alternate week. As a general proposition, apart from the weekends when the children spend both days with their father, the changeover arrangements should involve each parent sharing the travel.
Both parents have foreshadowed an issue about where X would attend school in 2018. The order and notations proposed by the Father in this regard are sensible in that they suggest if an application is made in this regard it should be made no later than a certain date, but that in the meanwhile, each parent is free to make inquiries about potential schools to enrol X in.
The Court will make orders in terms of that proposed by the Father but substitute another date for filing. The Court, however, does make this observation, again whilst its mind is by no means closed. Given that the Father concedes that the children should live with the Mother and given that he did not press the interim relocation issue at the interim hearing, unless he can convince the Court to compel the Mother and children to relocate then some would say that a likely outcome is that the children can go to school closest to where their mother lives, but that is a matter for the parties to consider in the fullness of time.
This is a case that needs an urgent Family Report. The Court has already made it clear to the parents and their legal representatives that if the Court orders a Family Report, it will take at least 12 months. The orders that the Court intends to make could easily be revisited once appropriate expert evidence were obtained. What constrains the Court is not Court time but the absence of appropriate evidence. The Court urged the parties to consider funding their own report. It is in the best interests of these children that this matter be determined sooner than it could be if the Court were forced to rely on its own sources. Accordingly, the Court will not, for the time being, make an order for a Family Report whilst the parents consider the ramifications of what the Court has just said in these reasons.
Whilst the Court recognises that the statutory pathway requires it to consider equal time, neither party sought this, quite reasonably so. The Court must consider substantive and significant time. The Father’s proposal would have met this, although the mother’s would not.
The Court does not believe that it is in the children’s best interests for the reasons articulated above. What is clear is that on any proposal, let alone the orders that the Court proposes to make, these children will continue to have a meaningful relationship with their father. The only risk of harm issue may derive from the Paternal Grandmother but that has been dealt with with the present orders. Both parents raise issues about the other’s capacity and attitudes and these are matters that are best dealt with at a final hearing.
Accordingly, I am going to make orders. Basically, what the orders provide for is equal shared parental responsibility, lives with mother, and then that the father spend time with the children every Saturday 9am to 4pm, and then on each alternate weekend from 9am to 4pm on Saturday and 9am to 4.00pm on Sunday. The parties will see from the Orders that implicit in them is the recognition that the kids will be staying at their Maternal Grandmother’s home on the alternate weekend. The order for the Saturday contact commences immediately. The order for the Saturday and Sunday contact would commence not from tomorrow but from the weekend after that.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 10 May 2017

[2017] FCCA 886

21 April 2017

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness