Portus and Storey

[2013] FCCA 2395

FEDERAL CIRCUIT COURT OF AUSTRALIA

PORTUS & STOREY [2013] FCCA 2395

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – parental responsibility – equal shared parental responsibility – best interests of the children – travel – international travel – permission for children to travel internationally – arrangements whilst children are overseas.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 61DB, 65DAA

Applicant: MS PORTUS

Respondent: MR STOREY

File Number: SYC 6744 of 2013

Judgment of: Judge Scarlett

Hearing date: 6 December 2013

Date of Last Submission: 6 December 2013

Delivered at: Sydney

Delivered on: 13 December 2013

REPRESENTATION

Counsel for the Applicant: Ms Petrie

Solicitors for the Applicant: Blackman Pty Ltd

Counsel for the Respondent: Mr Bell

Solicitors for the Respondent: Messenger Family Law

ORDERS

1. All earlier parenting Orders are discharged.

BY CONSENT UNTIL FURTHER ORDER

1. The children [X] born [in] 2006 and [Y] born [in] 2011 are to spend time with the Respondent Father until 28 December 2013 as follows:

   (a)On 6 December 2013 from 3:00pm to 9 December 2013 at 8:00am;

   (b)On 11 December 2013 from 3:00pm to 13 December 2013 at 8:00am;

   (c)On 18 December 2013 between 3:00pm and 7:00pm;

   (d)On 20 December 2013 from 12:00pm to 23 December 2013 at 12:00pm; and

   (e)On 25 December 2013 from 12:00pm to 28 December 2013 at 10:00am.

AND IT IS FURTHER ORDERED UNTIL FURTHER ORDER

1. The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for and make joint decisions in relation to major long-term issues affecting the children [X] born [in] 2006 and [Y] born [in] 2011, including but not limited to:

   (a)The children’s education, including but not limited to enrolment at day-care, pre-schools, schools and extra-curricular activities;

   (b)The children’s religious and cultural upbringing;

   (c)The children’s health;

   (d)The children’s names; and

   (e)All changes to the children’s or the parents’ living arrangements that make it significantly more difficult for the children to spend time with each of the parents under these Orders.

2. Each parent shall individually have sole responsibility for making decisions concerning other aspects of the care, welfare and development and parental responsibility of the children [X] and [Y] on a day to day basis during periods when the children are living with or spending time with that respective parent.

3. The parties are to take all reasonable steps to participate in a Child Dispute Conference with a Family Consultant at the Sydney Registry of the Court under the provisions of section 11C of the Family Law Act 1975 on a date to be fixed in February 2014 and in accordance with section 11C of the Family Law Act evidence of the matters discussed in the Child Dispute Conference will be admissible in evidence.

4. The children [X] and [Y] are to live with the Applicant Mother.

5. The Mother is permitted to take the children [X] born [in] 2006 and [Y] born [in] 2011 out of Australia and travel internationally with them to Germany and Belgium between 29 December 2013 and 24 January 2014.

6. While the children are in Germany they are to spend time with the Father and members of his family in Belgium from 12 noon on 4 January to 12:00 noon on 12 January 2014 with the changeover between the parties to occur in [omitted] in Germany or as otherwise agreed between the parties in writing.

7. While the children are in Belgium in the care of the Father they are to have telephone communication with the Mother on one occasion at a reasonable time.

8. While the children are in Germany in the care of the Mother they are to have telephone communication with the Father:

   (a)On one occasion between 29 December 2013 and 3 January 2014; and

   (b)On one occasion between 13 January and 23 January 2014.

9. The Mother must return the children to Australia by 24 January 2014.

10. The Father is to pay half of the children’s airfares from Australia to Germany and return within seven (7) days of the Mother providing a copy of the receipt to the Father confirming the purchase of airline tickets for the children.

11. The parties are to take all steps necessary as soon as practicable to permit the children to travel internationally and return to Australia in accordance with these Orders including execution of all necessary documents including passport applications and attendance on authorities including passport offices.

12. The parties are at liberty to register these Orders in an overseas Court of competent jurisdiction or otherwise lodge or provide a copy to the relevant authorities.

13. Upon the children [X] and [Y] returning to Australia on 24 January 2014 they are to spend time with the Father as follows:

    (a)During the school term:

    (i)Each alternate weekend from immediately after school or day care as the case may be on Friday until the commencement of school or day care on Monday morning; and

    (ii)Each Wednesday from immediately after school or day care as the case may be until 7:00 pm;

    (b)For a period of five (5) days during each of the Autumn, winter, and Spring school holidays;

    (c)On each of the children’s birthdays if the children are not otherwise spending time with the Father from immediately after school or day care as the case may be until 7:00pm on a school day or from 2:00pm to 5:00pm if the day does not fall on a school day;

    (d)On the Father’s birthday if the children are not otherwise spending time with the Father from immediately after school or day care as the case may be until 7:00pm on a school day or from 9:00am to 12 noon if the day does not fall on a school day; and

    (e)On Fathers’ Day if the children are not otherwise spending time with the Father from 9:00am to 5:00pm.  

14. Notwithstanding the above Orders, the children will spend time with the Mother:

    (a)From 9:00am to 5:00pm on Mothers’ Day;

    (b)On the Mother’s birthday if the children are not otherwise in the care of the Mother from immediately after school or day care as the case may be until 7:00pm on a school day or from 9:00am to 12 noon if the day does not fall on a school day; and

    (c)On each of the children’s birthdays if the children are not otherwise in the care of the Mother from immediately after school or day care as the case may be until 7:00pm on a school day or from 9:00am to 12 noon if the day does not fall on a school day.

15. For the purposes of the above Orders:

    (a)When the commencement of a care period falls on a day care or school day the Father will collect the children from school and day care;

    (b)When the conclusion of a care period falls on a day care or school day the Father will deliver the children to school and day care; and

    (c)When the commencement of a care period falls on a day which is not a day care or school day the Father will collect the children from the Mother’s residence and the Mother will collect the children from the Father’s residence at the conclusion of the time or as otherwise agreed between the parties.

16. The Mother is to have telephone communication with the children when they are not in her care between 6:30pm and 7:00pm on each day and the Father must make the children available to receive those telephone calls from the Mother.

17. The Father is to have telephone communication with the children when they are not in his care between 6:30pm and 7:00pm on each day and the Mother must make the children available by telephone to receive those telephone calls from the Father.

18. Each party must notify the other of any serious illness or injury that either of the children may suffer as soon as is reasonably practicable.

19. The parties are restrained from criticising or denigrating the other party in the presence or hearing of the children or from permitting any third party from doing so.  

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6744 of 2013

MS PORTUS

Applicant

And

MR STOREY

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Mother for interim parenting orders relating to the parties’ two children, [X], aged seven, and [Y], aged two. The Father also seeks interim orders, which would involve the children spending more time with him than the Mother seeks.

2. The need for interim orders has arisen because the Mother, who was born in Germany, wishes to take the two children to Germany with her between 29^th December 2013 and 24^th January 2014. The Father wishes to travel to Europe over that same period. He is originally from Belgium and his family still live there. He would like the children to spend some time with him in Belgium so that they may see their parental extended family.

3. The parties have only recently separated and communication between them is still rather strained. However, to their credit they have been able to agree about a number of matters, to the extent that some interim orders have been made by consent to cover the period of time between 6^th and 28^th December.

4. The issues to be resolved are:

   a)the practical details about the children spending time with each parent in Germany and Belgium whilst they are away; and

   b)the somewhat more long-term arrangement for the children to spend time with each parent once the parties return from Europe in late January.  

Background

1. The Mother was born in Romania but spent her childhood in Germany. She was born [in] 1974. She is a [omitted] by profession, and has been so since 2005.

2. The Father is a [occupation omitted]. He is from Belgium and was born [in] 1974.

3. The parties commenced their relationship in Australia in 2005. The Mother returned to Germany to complete her final examination in order to become a [occupation omitted], and immigrated to Australia later that same year.

4. The parties commenced living together in December 2005.

5. There are two children of the relationship:

   a)[X], a boy, was born [in] 2006; and

   b)[Y], a girl, was born [in] 2011.

6. The parties separated under the one roof on 14^th June 2013. On 29^th September 2013 the Mother left the family home, taking the two children with her. She has a live-in Au Pair who assists her with the care of the children.

7. The Mother is working as a [omitted].

8. [X] attends school where he is in Year 2. The school is situated in the same suburb as the parties’ former home, where the Father still resides. The Mother’s residence is in the adjoining suburb.

9. The child [Y] attends a pre-school and nursery situated in the same suburb as her brother’s school.

10. The Mother deposed at paragraph [43] of her affidavit that the parties attended a mediation and agreed on the following arrangements:

    a)the Mother and the two children would move out of the family home;

    b)the children would spend five nights each fortnight with the Father; and

    c)the children would spend one afternoon a week with the Father.

11. This arrangement remains in force. It is the Mother’s view that this arrangement does not suit the parties’ son, [X].

12. The Mother wishes to take the children to Germany to see her mother, who has a terminal illness. The Father also wishes to spend some time in Europe, with his extended family, but the parties cannot agree about the amount of time that the children should spend with him in Belgium.

13. On 6^th December 2013 the parties agreed about some times that the Father would spend with the children between that day and 28^th December and orders were made by consent, providing that the Father would spend time with the children:

    a)From 3:00pm on 6^th December to 8:00am on 9^th December;

    b)From 3:00pm on 11^th December to 8:00am on 13^th December;

    c)Between the hours of 3:00pm and 7:00pm on 18^th December;

    d)From 12 noon on 20^th December to 12 noon on 23^rd December; and

    e)From 12 noon on Christmas Day until 10:00am on 28^th December.   

Orders Sought

1. Each party has tendered a Minute setting out their proposals for interim orders. Although a number of orders have been the subject of agreement or are not pressed, the mother seeks these orders, which the Father opposes:

   4. That while the children are in Germany the children will spend time with the Respondent Father and his family in Belgium from 12:00 pm 5 January 2014 to 11 January 2014 at 3:00 pm.

   7. Upon the children returning to Sydney, Australia on 24 January 2014, the spend time with the Respondent Father until further Orders as follows:

   (a)During school term, each alternate weekend from the conclusion of school on Friday until 6.00 pm on Sunday;

   (b)Every Wednesday from the conclusion of school until 7.00 pm;

   (c)     (not pressed)

   (d)    (not pressed)

   8.  Notwithstanding any other order to the contrary:

   (a)During the Easter period, the children will spend time with the party that does not otherwise have the care of the children, on Easter Sunday the hours as agreed and failing agreement, between 12:00pm and 6:00pm.

   (b)On each of the children’s birthday, the child will spend time with the party that does not otherwise have the care of the child for at least two hours as agreed and failing agreement:

   (i)     From 2:00 pm to 4:00 pm if the day is not a school day; and

   (ii)    From after school to 6:00 pm if the day is a school day. 

   (c)On the Applicant Mother’s birthday, if the children are not otherwise in her care, the children will spend at least 3 hours with the Applicant Mother as agreed and failing agreement:

   (i)     From 9:00 am to 12 noon if the day is not a school day; and

   (ii)    From after school to 6:00 pm if the day is a school day.

   (d)On the Respondent Father’s birthday, if the children are not otherwise in his care, the children will spend at least 3 hours with the Respondent Father as agreed, and failing agreement:

   (i)     From 9:00 am to 12 noon if the day is not a school day; and

   (ii)    From after school to 6:00 pm if the day is a school day.

   (e)On Father’s Day, if the children are not otherwise in the Respondent Father’s care, the children will spend from 10:00 am to 5:00 pm with the Respondent Father.

   (f)On Mother’s Day, if the children are not otherwise in the Applicant Mother’s care, the children will spend from 10:00 am to 5:00 pm with the Applicant Mother.

   10.That the Mother shall have telephone communication with the children when the children are not in her care between 6:30 pm and 7:00 pm and the Father shall make the children available by telephone to receive those telephone calls from the Mother.

   11.That the Father shall have telephone communication with the children when the children are not in his care between 6:30 pm and 7:00 pm and the Mother shall make the children available by telephone to receive those telephone calls from the Father.

2. For his part, the father seeks this arrangement for the children to spend time with each parent for the times other than when the children are in Europe:

   4. The children will continue to live in the shared care arrangement in a fortnightly cycle, during the term time as from 6 December 2013 as follows:

   (i) (no longer relevant)

   (ii)then with the mother from that first Monday until after school and day-care on the first Wednesday when the father will collect the children;

   (iii)then with the father from after school and day-care on the first Wednesday for 2 nights until the second Friday of the cycle when he will deliver [X] to school and [Y] to her mother’s home at 8am;

   (iv)with the mother for the second weekend[1] and until after school and day-care on the next Friday, when the cycle starts again and the children will spend the weekend with the father in accordance with the cycle;

   [1] Of a fortnightly cycle

   (v)save that the children will be with the father on the second Wednesday for the late afternoon and evening when the father will collect them from school and day-care at 3pm and deliver them to the mother’s home at 7:30pm;

   (vi)during school holidays, as agreed, but failing agreement, with the father for one half of all school holidays, being the first half of all school holidays in even numbered years and the second half in odd numbered years, and with the mother for the remaining holiday periods, and subject to spending time with each parent over Christmas and Easter, as agreed between the parties;

   (vii)that both parties have unlimited telephonic and electronic communications with the children whilst they are in the other party’s care;

   (viii)that, notwithstanding these orders that the children spend time with each parent on each of their birthdays, on each parent’s birthdays, on Father’s Day and Mother’s Day; and

   (ix)at all other times as agreed between the parties.

   …

   6.  Notwithstanding order 4 above, the children shall live with the mother from 6pm Friday 27 December 2013, who shall travel with them to visit the maternal grandmother in Germany until 3 January 2014 when the children will live with the father until 13 January 2014, and then with the mother until she returns to Australia on 24 January 2014, and with the changeovers to occur in [omitted], Germany at 12 noon on each changeover day, or as otherwise agreed between the parties in writing.

   …

   8. Whilst the children are overseas each party shall ensure that the children are able to receive and make telephone calls to the other parent.

Evidence and Submissions

1. The Mother relied on her affidavits of 13^th November and 2^nd December 2013.

2. The Father relied on his affidavit of 28^th November 2013.

3. Ms Petrie of counsel, who appeared for the Mother, submitted that the current shared care arrangement for the children was not working. The Mother claims that she was pressured into the arrangement. The child [Y] is only two and a half years old and is not used to being away from her mother for a lengthy period. The elder child, [X], is not coping with the to-and-fro arrangement between the homes of his parents.

4. The overseas trip is important to the Mother and, it is submitted, to the children. The maternal grandmother is terminally ill with ovarian cancer. The grandmother played a significant role in the children’s lives.

5. The Mother will take up [occupation omitted] from February onwards, which means that her place of work will be a lot closer to home.  This will significantly remove her travelling time.

6. The Mother seeks that the Father should spend alternate weekends with the Father.

7. Counsel for the Father, Mr Bell, submitted that all the changes to the arrangements proposed by the Mother were “travelling down the same path” – restricting the Father’s time with the children. It is significant that the younger child, [Y], is only two and a half years of age, because a child under the age of four years needs to see a parent regularly to build up an attachment. The intervals between the times when the child would be with the Father are too long, it is submitted, to allow an attachment to build up.

8. The Father seeks more time with the children whilst they are in Europe. His parents, the children’s paternal grandparents, live in Belgium and it would be desirable that the children should have the opportunity to spend time with them.

Applications for Parenting Orders

1. Part VII of the Family Law Act 1975 (Cth) deals with matters relating to children. The objects of Part VII are set out in s.60B(1) of the Act, providing for children’s best interests to be met by:

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

   b)Protecting children from physical or psychological harm;

   c)Ensuring that they receive adequate and proper parenting; and

   d)Ensuring that parents fulfil their duties and meet their responsibilities.

1. The principles underlying those objects are set out in s.60B(2) and include (except when it is or would be contrary to a child’s best interests):

   a)Children’s right to know and be cared for by both of their parents;

   b)Children’s 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;

   c)Parents jointly share duties and responsibilities concerning their children’s care, welfare and development; and

   d)Parents should agree about the future parenting of their children.

2. Section 60CA of the Act requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration. Section 60CC sets out the way that the Court determines what is in a child’s best interests, by having regard to the primary considerations in subsection (2) and the additional considerations in subsection (3).

3. The Court is required by s.61DA of the Act to apply the presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child. This presumption does not apply in cases of abuse of family violence and it may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for the child’s parents to have equal shared parental responsibility.

4. In an interim hearing, such as this, where the Court is making an interim order, subsection 61DA(3) provides that the presumption will apply unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making the interim parenting order.

5. Where the Court does make an order providing for a child’s parents to have equal shared parental responsibility for the child, the Court is then required by s.65DAA(1) to consider whether it is both in the child’s best interests and reasonably practicable for the child to spend equal time with each parent. If the Court does not make an order to that effect, it must then consider under s.65DAA(2) whether it is both in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent.

Conclusions

1. The parties have attended a Child Dispute Conference with a Family Consultant. In her Memorandum to the Court, the Family Consultant noted that the parties had agreed that they would have equal shared parental responsibility for the children and that “On an INTERIM the current parenting arrangements will continue”. It was made clear by counsel for the Mother that she did not agree to the arrangements continuing in that form once she returned to Australia in late January.

2. The Family Consultant recommended that an appointment should be made for a further conference in late February 2014. An appointment has now been made.

3. I am satisfied that, as the parties have agreed on equal shared parental responsibility, an order should be made to that effect. It is always the case that the Court must consider afresh the question of parental responsibility when making final parenting orders. Section 61DB of the Act provides:

   If there is an interim parenting order in relation to a child, the court must, in making a final parenting order in relation to the child, disregard the allocation of parental responsibility made in the interim order.

4. There are two issues that needed to be resolved on an interim basis:

   a)The amount of time the children should spend with each parent when they are away in Germany and Belgium; and

   b)The arrangements for the children to spend time with each parent when they return to Australia in late January.

5. The best interests of the children must be the paramount consideration in each case.

6. The scope of the disagreement between the parties in respect of the amount of time the children should spend with their father whilst they are away is really very narrow.

7. The Mother proposes that the children should spend time with the Father and his family in Belgium from 12 noon on 5^th January until 3:00pm on 11^th January, some six days and three hours.

8. The Father seeks a greater amount of time, starting earlier and finishing later. He proposes that the children should be with him in Belgium from 12 noon on 3^rd January until 12 noon on 13^th January, a period of ten days.

9. The evidence is not particularly persuasive either way. The parties disagree about how much time that the Father has spent with the children, but it is not possible to make a finding of fact on this point without testing the evidence. It is certainly the case that the time away in Germany and Belgium will be a new and unusual time for the children. They will be seeing new places and spending time with their maternal and paternal extended families. It will be a very different experience from their normal day to day life in Australia.

10. In the circumstances, I propose to order that the children should spend time with their father from 4^th January to 12^th January, a period of eight days. During that time, they should be able to speak to their mother on the telephone on one occasion. Whilst the children are in the care of the Mother, they should be able to speak to their father by telephone on two occasions, once before they go to Belgium and again after they have returned to the care of their mother in Germany.

11. As to the arrangements for the children once they return to Australia, I am not satisfied that it would be in the children’s best interests to spend equal time with each parent. The arrangement that has existed does involve the children going from the home of one parent to that of the other, and I consider that this could be unsettling and disruptive for them. The Mother is the primary caregiver and she has the assistance of a live-in Au Pair, with whom the children are presumably familiar.

12. In my view, an arrangement where the children live primarily with their mother but spend something approaching substantial and significant time with their father would be more in the children’s best interests, as it would assist the children to form the view that the residence of the Mother is their home. They are familiar with the former family home, as the Father still lives there, but the situation has changed significantly for them in recent months and they need time to adjust.

13. The little girl, [Y], needs to be able to develop her relationship with her mother as her primary caregiver but, at the age of two and a half, she would appear to be able to spend overnight time in the care of her father. It is the Mother’s evidence that the child [X] has been unsettled and has complained about constantly going from the care of one parent to that of the other. Whilst this is untested, the assertion by the Mother deserves consideration. If it is the case that [X] settles down once he is spending more time with his mother and not moving been residences so frequently, as the Mother believes to be likely, then this arrangement would appear to be more suitable for this child’s needs.

14. The orders that I propose to make will provide for the children to spend a full weekend each fortnight with their father, from after school or day-care on Friday afternoon to the commencement of school or day-care on Monday morning, a block of three nights. They would also spend every Wednesday afternoon with their father from immediately after school or day-care until 7:00 pm.

15. In my view, this arrangement would be reasonably practicable, noting that the residences of the two parents, [X]’s school and [Y]’s day-care centre are all in close proximity to each other, in two adjoining suburbs.

16. There will be arrangements for the children to spend time on birthdays, Fathers’ Day and Mothers’ Day with each parent, which brings the arrangement closer to substantial and significant time. I propose to order that there should be time with the Father for blocks of five days during the Autumn, Winter and Spring school holiday periods in 2014. As the Christmas/January school holidays in 2014 do not commence until late December 2014, it would hardly seem necessary to make orders to cover that situation at this stage.

17. The parties are due to see a Family Consultant for a further Child Dispute Conference in February 2014 and the matter will come back to Court after that. If the Father wishes to pursue his claim that the children should spend equal time with each parent, he may do so at a final hearing.

18. It is important, however, for a party seeking an order that the children should spend equal time with each parent, to ask themselves why they seek such an order. There may be many reasons. The issue for the Court will be whether or not it is in the children’s best interests to spend an equal amount of time with each parent. It is always the case that the best interests of the children concerned must be the paramount consideration for any Court deciding whether to make a parenting order.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  20 February 2013