Ramsland and Caffey
[2013] FCCA 2079
•9 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAMSLAND & CAFFEY | [2013] FCCA 2079 |
| Catchwords: FAMILY LAW – Parenting – interim hearing – parental responsibility – equal time or substantial and significant time arrangement. |
| Legislation: Family Law Act 1975, ss.4, 60CA, 60CC, 61B, 61C, 61DA, 64B, 65DAA |
| Goode & Goode (2006) FLC 93-286 McCall & Clark [2009] FamCAFC 92 Newlands & Newlands [2007] FamCA 168; 37 Fam LR 103 |
| Applicant: | MS RAMSLAND |
| Respondent: | MR CAFFEY |
| File Number: | SYC 5500 of 2013 |
| Judgment of: | Judge Monahan |
| Hearing date: | 13 November 2013 |
| Date of Last Submission: | 13 November 2013 |
| Delivered at: | Sydney |
| Delivered on: | 9 December 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Christie |
| Solicitors for the Applicant: | Dimocks Family Lawyers |
| Counsel for the Respondent: | Mr Blackah |
| Solicitors for the Respondent: | Swaab Attorneys |
ORDERS
THE COURT ORDERS, UNTIL FURTHER ORDER, THAT:
The Applicant (“the mother”) and the Respondent (“the father”) have equal shared parental responsibility for X born (omitted) 2007 (“X”) and Y born (omitted) 2009 (“Y”) ( collectively, “the children”).
Subject to paragraphs 3 to 5 herein, the children live with the mother.
During school terms the children live with the father in a fortnightly cycle as agreed or, failing agreement, as follows:
(a)Commencing immediately and continuing until the conclusion of Term 1 in 2014 as follows:
(i)Week one: from after school/day care (or 3:00 pm if a non-school day) on Friday until before school/day care (or 9:00 am if a non-school day) on Monday; and
(ii)Week two: from after school/day care (or 3:00 pm if a non-school day) on Wednesday until before school/day care (or 9:00 am if a non-school day) on Thursday;
(b)Commencing in the first week of Term 2 in 2014 until the conclusion of Term 3 in 2014 as follows:
(i)Week one: from after school/day care (or 3:00 pm if a non-school day) on Friday until before school/day care (or 9:00 am if a non-school day) on Monday; and
(ii)Week two: from after school/day care (or 3:00 pm if a non-school day) on Wednesday until before school/day care (or 9:00 am if a non-school day) on Friday;
(c)Commencing in the first week of Term 4 in 2014 and thereafter as follows:
(i)Week one: from after school/day care (or 3:00 pm if a non-school day) on Thursday until before school/day care (or 9:00 am if a non-school day) on Monday; and
(ii)Week two: from after school/day care (or 3:00 pm if a non-school day) on Wednesday until before school/day care (or 9:00 am if a non-school day) on Friday.
Paragraph 3 herein be suspended during all NSW gazetted school holiday periods (“school holidays”) and recommence in the first week of each school term.
In relation to school holidays, and failing agreement between the parties, the children live with the father as follows:
(a)in the 2013/2014 long summer school holidays, for at least three non-consecutive periods with each period being for not less than five nights as agreed, or failing agreement as follows:
(i)from Friday, 27 December 2013 at 11:00 am until Monday 1 January 2014 at 5:00 pm;
(ii)from Thursday 9 January 2014 at 11:00 am until Tuesday 14 January 2014 at 5:00 pm; and
(iii)from Wednesday 22 January 2014 at 11:00 am until Monday 27 January 2014 at 5:00 pm; and
(b)in the April 2014 school holidays, for at least a six night period as agreed, or failing agreement from Sunday 20 April 2014 at 11:00 am until Saturday 26 April 2014 at 5:00 pm; and thereafter
(c)for one half of all school holiday periods as agreed or, failing agreement, the second half of all school holiday periods commencing in 2014 and each alternate year thereafter and the first half of all school holiday periods commencing in 2015 and each alternate year thereafter.
In relation to changeovers that do not occur at the children’s school/day care centre, changeovers occur at such place or places as agreed, or failing agreement, changeovers alternate between the (omitted), (or such other place as nominated by the mother in writing on reasonable notice) and (omitted), (or such other place as nominated by the father in writing on reasonable notice).
When the children are living with the mother she facilitate them communicating with the father by telephone (or by Skype or electronic equivalent) at such times as agreed between the parties and failing agreement, the father nominate in writing three evenings per week for this communication time to occur for a maximum 30 minute period between 4.00 pm and 7.00 pm.
When the children are living with the father for more than one night, he facilitate the children communicating with the mother by telephone at such times as agreed between the parties or, failing agreement, every second night with the mother to nominate in writing a maximum 30 minute time period between 4.00 pm and 7.00 pm for this communication time to occur.
In relation to paragraphs 7 and 8 herein, each party provide the other with their nominated communication times in writing within 72 hours of the date of these orders and thereafter if either party wishes to change their nominated times they provide the other party with at least 7 days written notice.
In the event that the mother relocates her residence to (omitted) in January 2014, then the parties cause X to be enrolled in, and attend, (omitted) Public School.
Subject to any agreement between the parties to the contrary, the parties are restrained from changing Y’s enrolment at (omitted) Day Care Centre (“the day-care centre”) and, should it be necessary, the parties are to re-enrol Y at the day care centre.
The parties each:
(a)keep each other informed of their respective telephone numbers (including landline and mobile) and addresses and notify each other within 7 days of any change;
(b)advise the other immediately in the event that the child suffers any serious illness or injury including details as to any medical practitioner, hospital or medical practise attended;
(c)be restrained from making any critical, disparaging or derogatory remarks about the other party or any member of the other party’s family including any partner of the other party, to either of the children or in the presence or hearing of either of the children, including verbal, written or electronic means including email and text message; and
(d)be restrained from discussing these proceedings with the children or in the presence or hearing of either of the children, such order to include verbal, written or electronic means including email or text message.
AND THE COURT ORDERS THAT:
The Application in a Case filed by the father on 23 September 2013, the father’s interim orders in the Amended Response on 8 November 2013 and the interim orders sought by the mother in her Initiating Application filed 20 September 2013 (subject to the issue of the appointment of an Independent Children’s Lawyer) be dismissed.
AND THE COURT NOTES THAT:
(A)The parties were in agreement for the children to spend the night of 24 December 2013 with the father and 25 December 2013 with the mother.
(B)The Court did not not make any orders with respect to other special days, (such as birthdays, Mother’s Day or Father’s Day) or for the Christmas period in 2014 in this decision.
(C)The matter remains listed for mention hearing on 7 February 2014 and for a Child Dispute Conference on 11 December 2013 at 11:00am.
(D)The purpose of the mention hearing is to:
a.consider the memorandum produced from the Child Dispute Conference;
b.consider whether an Independent Children’s Lawyer should be appointed;
c.receive an update on the progress of the parenting arrangements;
d.receive an update on financial matters including whether the matter is appropriate to be referred to a Conciliation Conference; and
e.in the event that the parties remain in dispute, make further directions.
(E)Pursuant to ss.65DA(2) and 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 are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Ramsland & Caffey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 5500 of 2013
| MS RAMSLAND |
Applicant
And
| MR CAFFEY |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings involve property and parenting matters between the applicant, MS RAMSLAND (“the mother”) and the respondent, MR CAFFEY (“the father”).
The relevant children of the marriage are X born (omitted) 2007 (“X”) and Y born (omitted) 2009 (“Y”) (and collectively, “the children”).
This decision only concerns interim parenting arrangements and in particular whether the children should live in an equal time arrangement (as the father proposes) or live with the mother and spend time with the father (as the mother proposes).
Both parties were legally represented by Counsel when the interim hearing proceeded before me on 13 November 2013 (“the interim hearing”); the mother by Ms Christie and the father by Mr Blackah.
Any statutory references I make will be to the Family Law Act 1975 (“the Act”).
Background
The parties commenced cohabitation in 2000 (according to the mother) or from mid-1999 (according to the father). The parties were married on (omitted) 2007 and separated in early December 2012.
As stated, there are two children of the marriage, X aged 6 years and Y aged 4 years.
The mother remains living in the former matrimonial home at Property R in the (omitted) suburbs of Sydney with the children. However, she intends to move to a new residence in (omitted) in the new year. After separation, the father moved out of the former matrimonial home and currently resides in rented accommodation in (omitted).
The parties each make assertions as to what has occurred since separation and in more recent times.
The matter came before me for the first time in my duty list on 13 November 2013 when, as stated, I acceded to the parties request for an interim hearing on parenting issues.
Issues not in dispute
Broadly speaking, the parties are in agreement that during their relationship the mother had been a primary carer for the children.
The parties were also in agreement that the children had been living in an equal time arrangement since early 2013 until that arrangement was terminated by the mother in September. These proceedings were filed thereafter. I will note at this stage that the parties disagree as to the success of the equal time arrangement that had existed this year prior to filing of these proceedings.
In addition, the parties were in agreement that the children can spend overnight time with the father on Christmas Eve and with the mother on Christmas day.
Although the mother initially sought an order for the appointment of an Independent Children’s Lawyer (“ICL”), the parties agreed to defer that issue (if agitated) until after the Child Dispute Conference scheduled to take place on 11 December 2013.
Issues in dispute
Broadly speaking, the parenting issues in dispute relate to the following:
·whether or not an order should be made at this early stage of the proceedings for equal shared parental responsibility;
·whether the children should live in an equal time arrangement or otherwise live with the mother and spend time with the father (and related thereto, whether the mother be permitted to relocate the residence of the children to (omitted) commencing in January, 2014);
·whether the children should remain in their current school/day care centre or whether they should be permitted to attend the school and day care centre proposed by the mother as from January, 2014;
·what arrangement should be in place for the children to spend time with each of the parties during the forthcoming long summer school holiday period; and
·where change-overs should occur (when not occurring at school/day care); and
·what type of order should be made to enable the children to communicate with each of the parties when the children are not in their care.
Proposals
The mother proposes an interim outcome as follows that:
·there be no order allocating parental responsibility (at this stage);
·the children live with her and spend time with the father on a fortnightly basis during school terms as follows:
oin week one from after school/day care on Friday to before school/day care on Monday; and
oin week two from after school/day care on Wednesday until 7:00 pm;
·the arrangements for the forthcoming long summer school holiday periods remain the same as during school terms;
·the mother facilitate the children communicating with the father by telephone on Tuesdays and Thursdays between 6:00 pm and 7:00 pm; and that
·changeovers not occurring at school/day care occur at the (omitted).
At the commencement of the interim hearing, the mother’s counsel gave to the Court a minute seeking the following additional orders:
“1. That the applicant/mother be permitted to relocate the residence of the children … to (omitted) commencing in January, 2014.
2. That X shall attend (omitted) Public School in (omitted) commencing January, 2014.
3. That Y shall attend (omitted) Preschool in (omitted) commencing in January, 2014.”
The father proposes an interim outcome as follows that:
·there be an order for equal shared parental responsibility;
·the children live with the parties during school terms in an equal time arrangement as follows:
owith the father in week one from 11:00 am Saturday to before school/day care on Wednesday; and
owith the father in week two from 11:00 am Sunday to before school/day care on Wednesday; and
owith the mother at all other times;
·the children spend time with each parent on a week about basis during the forthcoming long summer school holiday period;
·the parties each facilitate the children being able to communicate with the other parent at all reasonable times; and
·changeovers not occurring at school/day care occur at (omitted), (or otherwise as agreed between the parties).
The father indicated through his Counsel that, in the event that the Court found against an equal time arrangement being implemented at this time, he would propose in lieu that the children live with the mother and spend time with the father for at least six nights per fortnight during school terms (a “6/8 arrangement”).
The father does not necessarily oppose the mother relocating her residence (and that of the children) to (omitted). In addition, while the father proposed that X and Y remain attending their current school and day care centre, he indicated that he would consider the mother’s proposal once he had obtained information from the relevant school and day care centre to assist him in making that decision.
Evidence
For the purposes of these interim proceedings, and in addition to her Initiating Application filed on 20 September 2013, the mother relies on her affidavit sworn and filed on 11 November 2013.
The father relies on his Amended Response filed on 8 November 2013 together with his affidavits sworn and filed on 23 September 2013 and sworn and filed on 8 November 2013. The father, through his Counsel, also provided the Court with a brief case outline document.
I note at this stage that the father caused an Application in a Case to be filed on 23 September 2013 that was returnable when the matter was before me in my duty list on 13 November 2013. This interim application will be dismissed with the orders that I make in this decision as the interim parenting orders sought are superseded by the orders sought by the father in his more recently filed Amended Response.
I note that no subpoenas have been issued at this point of the proceedings.
Child Dispute Conference
The parties have not, as yet, had the benefit of a Child Dispute Conference (“CDC”) pursuant to s.11F of the Act. Had I had capacity today to order a duty CDC for this matter when it was before me I may have done so, but unfortunately that resource was not available to the Court on the duty day I heard this matter.
The parties will, however, have the benefit of a CDC on 11 December 2013.
Submissions
Each of the parties’ legal representatives presented oral submissions at the interim hearing before me on 13 November 2013. The transcript for the interim hearing that was conducted that afternoon will, of course, reflect those reasons.
I do not propose to summarise those submissions, but will refer to those submissions where relevant during the course of these reasons.
Law and Discussion
All parenting proceedings of course are governed by the provision of Part VII of the Act. Parenting orders are defined in s.64B of the Act and deal with where a child is to live and, relevant to this dispute, the time that a child spends with another person. Parenting orders also deal with the allocation of parental responsibility.
Section 60CA of the Act provides as follows:
“In deciding whether to make a particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration.”
Section 60CA through s.60CC of the Act deals with how the Court determines the best interests of a child. This is sometimes referred to as the ‘legislative pathway’. The most relevant to these parenting proceedings that are before me presently are the primary considerations in s.60CC(2) and the additional considerations in s.60CC(3) where relevant, and I will consider those briefly in a moment.
In addition, the Court is guided by case law relevant to interim parenting disputes including the Full Court’s decision in Goode & Goode (2006) FLC 93-286 (“Goode”). At this point, I note the following observation of the Full Court at paragraph 81 of Goode that:
“In making interim decisions, the court will still often be faced with conflicting facts, little helpful evidence and disputes between parents as to what constitutes the best interests of the child.”
Clearly this matter is such a case. More specifically, it raises the reality that the Court cannot fully determine issues of credit at an interim hearing as the evidence being presented by the parties has not been tested by cross-examination and the matter proceeded by way of submissions only. That having been said, the Full Court in Goode made it clear that the ‘legislative pathway’ must be followed. In other words, the relevant provisions of the Act post the 2006 and 2012 amendments must be followed.
There is, unfortunately, considerable animosity and distrust between the parties in this case, and no doubt the history of the matter will be the subject of evidence in cross-examination at a final hearing should it be needed.
Parental Responsibility
In this case there is a live issue between the parties as to the allocation of parental responsibility, although I note again that the mother no longer seeks that any order for parental responsibility be made at this time.
Section 64B(2) of the Act stipulates that a parenting order may include the allocation of parental responsibility for a child. That order “may deal with the allocation of responsibility for making decisions about major long term issues in relation to a child”.[1] In the absence of a parenting order, s.61C of the Act stipulates that “each of the parents of a child who is not 18 has parental responsibility for the child.”
[1] Section 64B(3) of the Act.
Section 61B of the Act states that parental responsibility “means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.” This not only includes those duties and responsibilities relating to such matters as health and education, but also the “general direction in life that is so important for children in teenage years.”[2]
[2] Lindell & Ranteri [2010] FamCA 52 at [31] (per Cronin J).
In s.4 of the Act, the relevant definition of what the law expects of parents in relation to this decision-making states:
“‘major long-term issues’, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child's education (both current and future); and
(b) the child's religious and cultural upbringing; and
(c) the child's health; and
(d) the child's name; and
(e) changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.”
Section 61DA of the Act requires the Court to presume that it is in the best interests of a child for his or her parents to have equal shared parental responsibility. However, s.61DA(2) of the Act makes it clear that the presumption does not apply if there are reasonable grounds to believe that there has been abuse of a child or family violence. In addition, under s.61DA(4) of the Act, the presumption may be rebutted if its application could be contrary to a child’s best interests. Those interests are determined by reference to the matters in s.60CC of the Act in light of the evidence.
Of direct relevance to this proceeding is s.61DA(3) which states:
“When a court is considering an interim order, the presumption applies unless the court considers it would not be appropriate in the circumstances for the presumption to be applied when making that order.”
This provision was discussed by the Full Court in Goode. Clearly the Court would need to be satisfied that there is sufficient evidence, or a lack of sufficient evidence, to determine that it would not be appropriate in the circumstances to apply the relevant presumption.
If the presumption of equal shared parental responsibility is not applied, or is rebutted, then the Court must still make an order which is in the best interests of the child – again, taking into account the considerations set out in s.60CC of the Act.
In this case the father seeks an order for equal shared parental responsibility on both an interim and final basis. Although the mother seeks an order for equal shared parental responsibility on a final basis, she opposes the making of any interim order of parental responsibility at this time.
The effect of the Court not making an order for parental responsibility would be that parental responsibility could be exercised by both parents either jointly or independently. It is possible for the Court to order that one or more aspects of parental responsibility be allocated to one parent alone and the remaining aspects either be subject to no order or an order for equal shared parental responsibility. Such possibilities were discussed by the Full Court of the Family Court in Newlands & Newlands [2007] FamCA 168; 37 Fam LR 103.[3]
[3] Newlands & Newlands [2007] FamCA 168 at [84]-[91] (per Bryant CJ, Finn & Boland JJ).
Given the circumstances of this case, I have concerns that such an outcome would not be in the best interests of the children. Consequently, the Court will consider this issue further following its discussion and analysis of the matters relevant under s.60CC of the Act. Before doing so, however, the Court will consider the evidence in light of s.65DAA of the Act.
Equal time or substantial and significant time
If a parenting order is to provide for a child’s parents to have equal shared parental responsibility, the Court is then required under s.65DAA of the Act to consider whether the relevant child’s best interests would be served by making an order that the child spend equal time, or alternatively substantial and significant time, with each parent.
Either outcome requires the Court to consider whether a child spending equal time, or substantial and significant time in lieu, with each parent would be in the “best interests of the child” and is “reasonably practicable” given the circumstances.
Section 65DAA(3) of the Act stipulates that a child will only be taken to spend “substantial and significant time” with a parent 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.”
That said, s.65DAA(4) of the Act stipulates that:
“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.”
In considering the reasonable practicality issue for both an “equal time” or a “substantial and significant time” order, s.65DAA(5) of the Act requires the Court to 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.”
I will now consider the primary and additional considerations under s.60CC(2) and (3) of the Act.
Primary considerations: s.60CC(2)
Section 60CC(2)(a) requires the Court to consider the benefit of a child having a meaningful relationship with both of a child’s parents.
At this point, let me note that meaningful does not mean equal, but it clearly signifies that both parties should be involved with their child and consequently signifies an expectation of time to be spent. It is the right of the child to spend time with each parent and extended family.
The Full Court considered this provision and the concept of ‘meaningful relationship’ in McCall & Clark [2009] FamCAFC 92. In summary, what the Court is required to do is consider and weigh the available evidence and determine (assuming the Court is satisfied that it is in the children’s best interests) how and what orders can be framed in order to ensure that the children have a meaningful relationship with both of their parents (and by implication their extended family).
Generally speaking, it is beneficial for children to have a meaningful relationship with the each of their parents and extended family.
That said, the Court must also consider s.60CC(2)(b) of the Act, the need to protect the child from physical or psychological harm and being subjected to or exposed to abuse, neglect or family violence.
There is no doubt that it would be in these children’s best interest to develop a meaningful relationship not just with their mother, but also with their father. That outcome, of course, needs to be balanced in respect of protecting the children from any physical or psychological harm and the like.
There are some issues in this case warranting further investigation and the Court consequently needs to tread more cautiously in the interim arrangements that will be necessary in this decision and beyond. I note also that pursuant to amendments to the Act that commenced in 2012, I am required to give greater weight to s.60CC(2)(b) as against s.60CC(2)(a).
Additional considerations: s.60CC(3)
In relation to s.60CC(3)(a), I would note that the “views of the child”, whilst significant, would be difficult to determine in this case given the children are only aged 6 years and 4 years. Nevertheless, their “views” may be something that the family consultant can assist the Court with in due course through observations perhaps of the children with each of the parents.
I note that the Court is yet to determine any request made by the mother for the appointment of an ICL. If appointed, an ICL generally meets with the children and, in appropriate circumstances, may seek to ascertain the children’s views. However, given the ages of these children, and the likelihood that the children may be interviewed and/or observed by a family consultant, it may not be appropriate for any ICL, if appointed, to interview X and Y.
In relation to s.60CC(3)(b) (“the nature of the relationship between the child and each of the child’s parents”), we have, not uncommonly in these types of disputes, different stories being presented to the Court at this stage. That evidence will require testing.
As to s.60CC(3)(c) (“the extent to which each parent has taken, or failed to take the opportunity to participate in making decisions …”), that is also a live issue in this case before me. The mother made a unilateral decision to end the equal time arrangement that had been in place for approximately 6 months during the course of 2013. The father asserts that because the mother ended the equal time arrangement and prevented him from spending any regular time with the children, he has been unable to participate in decision-making processes. That said, there is evidence to suggest that both parties acted cooperatively and appropriately when they organised a birthday party for X last September.
I note that both parties provide conflicting evidence as to the success or otherwise of the equal time arrangement that had been in place for six months this year. The Court is not in a position to make any finding about this issue at this stage. That said, it is possible that both parties did not handle the transition to equal time appropriately. Moreover, it is also possible that the children have been impacted by the recent decision of the mother to unilaterally implement a different ‘live with’ and ‘spend time’ regime.
As to s.60CC(2)(ca) (“the extent to which each of the children’s parents have fulfilled their obligations to maintain the child”), both parties make allegations against the other. The mother asserts that, generally speaking, she has been the primary carer for the children. This is somewhat disputed by the father.
As to s.60CC(3)(d) (“the likely effect of changes”), the father advocates for a change back to the arrangements that have been in place for some six months this year. The mother seeks to retain the more recent status quo which she acknowledges she unilaterally implemented just prior to commencing these proceedings in September.
Any change needs to be, of course, appropriately handled. As stated, subject to testing of the evidence, it is possible that the children have been impacted by not only the six-month period of shared care (as asserted by the mother) but also by the unilateral change to their living arrangements initiated by the mother more recently (as asserted by the father).
I now move to s.60CC(3)(e) (“the practical difficulty issues”). Neither party appears to assert any particular cost issue in respect of their proposals. Geographically it would appear that the parties live in reasonably close proximity.
At present, X’s school at (omitted) is located less than 1½ km from the current residences of the parties. The mother’s desire to change X’s school to (omitted) is both understandable and logical given her proposed move to (omitted). Should the father remain in his current residence, which I note is rental accommodation, he would be required to travel some 11½ km to (omitted) Public School. It is possible, of course, that the father may choose to move his residence closer to, or further away from, (omitted) Public School in the near to distant future. The mother’s evidence suggests that she will be less likely to move again from the (omitted) property (which I understand is owned by her parents) in the near to distant future. I further note that both parties work in the City of Sydney and there is no evidence to suggest that either party is likely to change their employment in the near to distant future.
The logic behind the proposed change in the day care centre for Y is less apparent. While there would be benefits to Y in transitioning from a preschool to a junior primary school, particularly a junior primary school located geographically close to the preschool, I note that Y currently attends a day care centre which presumably could assess him as to his readiness to attend junior primary school. Regardless, there may be benefits to Y remaining in the day care centre that he has more recently known rather than to force another change upon him. There would also be, presumably, benefits in having Y’s day care centre located close to where both parties work (for example, should the need arise to collect Y at short notice). That all said, the Court is not in a position in this decision to make any finding as to whether Y’s current day care centre or the proposed preschool would better suit his needs. The Court is, however, concerned about forcing a further change upon him (that is not supported by both parties), in circumstances where Y will be transitioning to junior primary school in early 2015.
I now move to s.60CC(3)(f) (“the capacity of each of the child’s parents”). In this case the parties each made criticisms of the other. I refer to previous comments.
In respect of s.60CC(3)(g) (“maturity, sex, lifestyle and background”), there are no specific matters here to assist the Court that have not already been referred to this decision.
In respect of s.60CC(3)(h) (“if the child is an Aboriginal child or a Torres Strait Islander child”), I am not aware that either the child is or identifies as an Aboriginal or Torres Strait Islander.
In relation to s.60CC(3)(i) (“the attitude issues”), I simply reiterate my earlier comments.
In respect of s.60CC(3)(j) (“family violence”) and s.60CC(3)(k) (“family violence orders”), I note that there is no evidence of there being any family violence order between the parties or otherwise relevant to these proceedings.
While the mother only asked the Court to read her second affidavit in this interim decision, I note that she refers to “the husband’s abusive conduct” at some length in her first affidavit (see paragraphs 28 – 63 of her first affidavit). The father does not specifically respond to these paragraphs from the mother’s first affidavit but rather asserts that it contains “a large amount of material relevant to the current urgent parenting proceedings before the Court” and that the affidavit “contains untruthful allegations, and if I have no[t] responded to paragraph that does not mean that I accept its contents as accurate”.
At paragraph 10 of her second affidavit the mother asserts that the parties had “a tumultuous relationship” and that there were many occasions during the marriage where she felt “afraid and fearful” of the father’s conduct or actions. The mother further asserts that the father would “often get very angry towards” her and that their “heated arguments” generally related to sharing the responsibilities for the children and their roles around the house. The mother also asked the Court to accept that she was bullied into implementing an equal time arrangement in respect of the children. This is denied by the father.
The Court is not in a position in this interim decision to make any findings as to whether family violence has occurred or not. There is no Apprehended Domestic Violence Order in place or before a Court and there is no evidence that any other Court has made any finding in respect of violence, apprehended or otherwise.
The evidence suggests that the parties did enter into an equal time arrangement earlier this year and that the mother ended that arrangement some two months ago. Further, there is evidence to suggest that the parties have been able to cooperate (including in more recent times) in their parenting of the children. That said, there is apparent agreement between the parties that changeovers involving or requiring either party to be present should be avoided where possible.
The Court is also not in a position to make any finding as to which changeover location would best promote the children’s interests when changeover at school/day care is not possible. Consequently, and failing further agreement between the parties, there would be merit in alternating the proposed locations.
As to s.60CC(3)(l) (“whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings”), this is not applicable at this stage because this is an interim decision.
As to s.60CC(3)(m) (“any other fact or circumstance”), there is no other fact or circumstance that the Court raises that has not already been discussed in these reasons.
Conclusion
Having regard to the respective applications and submissions in light of the available evidence and in the relevant statutory provisions, the Court is satisfied and determines as follows.
Firstly, the Court is satisfied that the presumption favouring equal shared parental responsibility applies, consequently there will be an interim order to that effect.
Secondly, the Court is satisfied until further order that the children should live with the mother and spend substantial and significant time or otherwise live with the father for increasing periods during school terms and in the forthcoming school holidays.
As to school terms, the children will live with the father, in a fortnightly cycle until further order as follows (and with the mother at all other times):
·Commencing immediately and continuing until the conclusion of Term 1 in 2014 as follows:
·Week one: from after school/day care (or 3:00 pm if a non-school day) on Friday until before school/day care (or 9:00 am if a non-school day) on Monday; and
·Week two: from after school/day care (or 3:00 pm if a non-school day) on Wednesday until before school/day care (or 9:00 am if a non-school day) on Thursday;
·Commencing in the first week of Term 2 in 2014 until the conclusion of Term 3 in 2014 as follows:
·Week one: from after school/day care (or 3:00 pm if a non-school day) on Friday until before school/day care (or 9:00 am if a non-school day) on Monday; and
·Week two: from after school/day care (or 3:00 pm if a non-school day) on Wednesday until before school/day care (or 9:00 am if a non-school day) on Friday;
·Commencing in the first week of Term 4 in 2014 as follows:
·Week one: from after school/day care (or 3:00 pm if a non-school day) on Thursday until before school/day care (or 9:00 am if a non-school day) on Monday; and
·Week two: from after school/day care (or 3:00 pm if a non-school day) on Wednesday until before school/day care (or 9:00 am if a non-school day) on Friday.
In relation to school holidays, failing agreement between the parties to the contrary and until further order the children will live with the father as follows (and with the mother at all other times):
·in the 2013/2014 long summer school holidays, for at least three non-consecutive periods with each period being for not less than five nights as agreed, or failing agreement as follows:
·from Friday, 27 December 2013 at 11:00 am until Monday 1 January 2014 at 5:00 pm;
·from Thursday 9 January 2014 at 11:00 am until Tuesday 14 January 2014 at 5:00 pm; and
·from Wednesday 22 January 2014 at 11:00 am until Monday 27 January 2014 at 5:00 pm;
·in the April 2014 school holidays, for at least a six night period as agreed, or failing agreement from Sunday 20 April 2014 at 11:00 am until Saturday 26 April 2014 at 5:00 pm; and thereafter
·for one half of all school holiday periods as agreed or, failing agreement, the second half of all school holiday periods commencing in 2014 and each alternate year thereafter and the first half of all school holiday periods commencing in 2015 and each alternate year thereafter.
The Court notes again that the parties are in agreement that for this year, the children are to spend the night of Christmas Eve with the father and Christmas Day with the mother.
The Court does not propose to make orders with respect to other special days, (such as birthdays, Mother’s Day or Father’s Day) or for the Christmas period in 2014 in this decision. The Court would invite the parties to have discussions about these issues in the hope of achieving a consensual position. If not, these issues may require a further interim determination by the Court (in addition to the issue as to whether the matter may benefit from the appointment of an ICL).
As stated, the Court is not in a position to make any finding as to which changeover location would best promote the children’s interests when changeover at school/day care is not possible. Consequently, and failing further agreement between the parties, there will be orders alternating the proposed locations in such circumstances.
As to the issue of X’s school and Y’ day care centre, failing agreement between the parties, the Court is satisfied that, despite the limited evidence before it, there is merit in allowing X to be enrolled at (omitted) Primary School provided the mother has relocated her residence to (omitted). The Court is not satisfied, at this point, that there should be an order changing Y’s day care centre. Consequently, the parties will be required to re-enrol Y in his current day care centre pending agreement to the contrary or further order of the Court.
As to communication time, given the level of distrust between the parties, the Court is satisfied that some structured orders are appropriate. Consequently, when the children are living with the mother she will be under an obligation to facilitate them communicating with the father by telephone (or by Skype or electronic equivalent) at such times as agreed between the parties or, failing agreement, the father nominate three evenings per week for this communication time to occur for a maximum 30 minute period between 4.00 pm and 7.00 pm.
Similarly, when the children are living with the father for more than one night, he facilitate the children communicating with the mother by telephone at such times as agreed between the parties or, failing agreement, every second night with the mother to nominate a maximum 30 minute time period between 4.00 pm and 7.00 pm for this communication time to occur.
To facilitate the necessary communication orders, each party will be required to provide the other with their nominated communication times in writing within 72 hours of the date of these orders and thereafter if either party wishes to change their nominated times they shall provide the other party with at least 7 days written notice.
I am satisfied that the following interim orders are in the best interests of the children; namely, that the parties each:
·keep each other informed of their respective telephone numbers (including landline and mobile) and addresses and notify each other within 7 days of any change;
·advise the other immediately in the event that either of the children suffers any serious illness or injury including details as to any medical practitioner, hospital or medical practise attended;
·be restrained from making any critical, disparaging or derogatory remarks about the other party or any member of the other party’s family including any partner of the other party, to either of the children or in the presence or hearing of either of the children, including verbal, written or electronic means including email and text message; and
·be restrained from discussing these proceedings with the children or in the presence or hearing of either of the children, such order to include verbal, written or electronic means including email or text message.
I note that in their respective interim applications, both parties sought costs against the other. In the circumstances and in light of this decision, I see no reason at this stage to depart from the general principle in s.117 of the Act that each party should pay their own costs.
There will be orders dismissing the father’s Application in a Case (and father’s interim orders in the Amended Response) and the mother’s interim applications sought in her Initiating Application (save the issue of the appointment of an ICL).
I note that the parties have the CDC on 11 December 2013 at 11:00am and that the matter will next return before me on 7 February 2014 where further directions can be made in respect of both financial and parenting matters.
There will now be Orders and notations of the Court to reflect this decision.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Judge Monahan
Date: 9 December 2013
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Jurisdiction
-
Procedural Fairness
-
Remedies
0
2
2