REINBOLD & REINBOLD

[2020] FCCA 3306

FEDERAL CIRCUIT COURT OF AUSTRALIA

REINBOLD & REINBOLD [2020] FCCA 3306

Catchwords:
FAMILY LAW– Interim parenting.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR REINBOLD

Respondent: MS REINBOLD

File Number: SYC 1546 of 2019

Judgment of: Judge Boyle

Hearing date: 15 October 2020

Date of Last Submission: 15 October 2020

Delivered at: Sydney

Delivered on: 15 October 2020

REPRESENTATION

Counsel for the Applicant: Mr Campton SC

Solicitors for the Applicant: Finn Roache Lawyers

Counsel for the Respondent: Mr Jackson

Solicitors for the Respondent: Gordon & Barry Lawyers

Solicitors for the Independent Children’s Lawyer: Ms Smith of Legal Aid NSW

PENDING FURTHER ORDER THE COURT ORDERS THAT:

1. The matter is listed into a call over on 10 December 2021 at 9:30am.

2. Order 2(b) of the orders made 14 April 2020 be varied to read that the father shall spend time with the children from after school Friday or 3pm to 5pm Monday for Term 4 2020, commencing 23 October 2020 and each alternate week thereafter.

3. As and from the beginning of Term 3 2021, the father shall spend additional time with the children from after school Tuesday until before school Thursday in each alternate week.

Short School Term Holidays

1. During the school holiday period at the conclusion of Terms 1, 2 and 3 the following applies:

   (a)The father spend time with the children for one half of the school holidays at the conclusion of Terms 1, 2 and 3 being the second half in even numbered years and the first half in uneven numbered years.

   (b)For the purposes of Order 4(a) herein, the first half of the holidays will be from completion of school on the last day the children attend school to 12 noon on the mid Saturday and the second half of the holidays will be from 12 noon on the mid Saturday to commencement of school on the first day the children return to school.

   (c)The father’s weekend pursuant to Order 2(b) of the orders made 14 April 2020 and varied as per Order 2 herein, shall recommence on the first weekend after the commencement of school term in years when the father has the children in the first half of the holidays and the second weekend after the commencement of school term in years when the father has the children in the second half of the holidays.

   (d)The father’s midweek time pursuant to Order 2(a) of the orders made 14 April 2020 shall recommence on the second week after the commencement of school term in years when the father has the children in the first half of the holidays and in the first week after the commencement of school term in years when the father has the children in the second half of the school holidays.

Christmas/January School Holidays

1. In the 2020/2021 Christmas/January school holidays the children live with each of the parties as follows:

   (a)From 4pm Christmas Eve to 4pm Boxing Day with the father.

   (b)From 4pm Boxing Day to 1 January 2021 with the mother.

   (c)From 12 noon 1 January 2021 to 12 noon 8 January 2021 with the father.

   (d)From 12 noon 8 January 2021 to 12 noon 15 January 2021 with the mother.

   (e)From 12 noon 15 January 2021 to 12 noon 22 January 2021 with the father.

   (f)From 12 noon 22 January 2021 to commencement of school term 1 in 2021 with the mother.

   (g)The father’s weekend pursuant to Order 2(b) of the orders made 14 April 2020 and varied as per Order 2 herein, shall recommence on the first weekend after the commencement of school term in 2021.

   (h)The father’s midweek time pursuant to Order 2(a) of the orders made 14 April 2020 shall recommence on the second week after the commencement of school term in 2021.

2. In the 2021/2022 Christmas/January school holidays the children live with each of the parties as follows:

   (a)From conclusion of school to 4pm Christmas Eve to 4pm Boxing Day with the mother.

   (b)From 4pm Boxing Day to 12 noon 1 January 2022 with the father.

   (c)From 12 noon 1 January 2022 to 12 noon 15 January 2022 with the mother.

   (d)From 12 noon 15 January 2022 to 12 noon 22 January 2022 with the father.

   (e)From 12 noon 22 January 2022 to commencement of school term 1 in 2022 with the mother.

   (f)The father’s weekend pursuant to Order 2(b) of the orders made 14 April 2020 and varied as per Order 2 herein, shall recommence on the first weekend after the commencement of school term in 2022.

   (g)The father’s midweek time pursuant to Order 2(a) of the orders made 14 April 2020 shall recommence on the second week after the commencement of school term in 2022.

3. For the purposes of changeover which do not occur at school the father shall collect the children at the commencement of the time and the mother shall collect the children at the conclusion of the time.

4. The mother register to undertake the next available Parenting Program A in her locality within seven (7) days of the date of these orders and upon completion of same provide a certificate of completion to the Independent Children’s Lawyer (ICL).

5. The parties attend upon Ms B for the purpose of family therapy to deal with the following issues:

   (a)How to undertake respectful communication between the parties.

   (b)How the parties may act in the best interests of the children when attending at school events, sport or other events where both parties would in the normal course be invited to attend.

   (c)How to respect each other’s parenting style and how they might assist the children in transitioning between each household.

6. The parties shall share the costs of therapy equally.

7. Leave is granted to the ICL to provide a copy of the report of Dr C to Ms B, the mother’s treating psychologist and the father’s treating psychologist.

8. Within 28 days the mother shall pay the sum of $9,350 to the father into an account nominated by him in writing, such sum being one half of the costs of Dr C’s report.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1546 of 2019

MR REINBOLD

Applicant

And

MS REINBOLD

Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore)

1. These are parenting proceedings with respect to the two children of the parties. X is aged seven, and will be eight on … 2020, and Y is aged five, and will turn six on … 2020. 

2. The parties have provided me with case outline documents, which include minute of orders sought and submissions to which I have had regard.  I have also read the material relied on by the parties, including the report of Dr C dated 14 July 2020.

3. The parties commenced cohabitation in 2009.  The father has three older children from a prior relationship: D, E, and F.  I understand that F and the father spend time together.  One of the other children is living in Country G.  There have been difficulties with the two older children’s relationship with the father.

4. The parties were married 2010. The parties separated on a final basis on 17 February 2017.  The mother commenced counselling around that time.  There has been issues for her with respect to anxiety from time to time, and certainly around stress such as the parties’ separation.

5. From March 2017 the parties engaged in a nesting arrangement, where the parents moved in and out of the former matrimonial home so that the children did not have to do so.  The mother was spending four to five days with the children, and the father two to three. 

6. In April 2017 the mother moved nearby and the children continued to spend time with the father each week, living most of the time with their mother. 

7. On 29 March 2019 consent orders were made which finalised the property aspect of the matter.  The property orders noted that the father was spending time with the children each alternate weekend from 5pm Friday to 5pm Sunday; every Tuesday from 4pm until Wednesday at 9.30 am; and at other times that were agreed between the parties. 

8. In October 2018, the father commenced a relationship with his partner, Ms H.  In December 2019 the father’s partner was charged with some criminal offences, and ultimately sentenced for about a year.   

9. Despite the ups and downs of the parties’ relationship, they have been able to reach agreements from time to time.  For example, from 22 August 2019 to 2 September 2019 the mother was away, and the children were in the care of their father, assisted by their adult brother.

10. There have been some occasions when the parties have been able to manage variations in agreements.  Recently this occurred with the change to the weeknight time previously ordered, to accommodate the day that the father is off work.  This permits additional time with Y as he has not yet started school.

11. Since December 2019, difficulties between the parties have compounded.  There was a period where the mother suspended the children’s time.  That was reinstated following the commencement of these proceedings.  The parties had a dispute between them about whether or not Y should commence school in 2020 or 2021. Over the course of that dispute, the father made some unfortunate communications with the school X attends, and Y’s preschool. These communications were undermining of the mother, and suggested that she was not putting Y’s interests first in her failure to support him starting school.

12. As Dr C observed, people can reasonably have different views about children’s readiness to start school.  Whilst Dr C commented on the number of emails sent by the father, I would also note the inappropriateness of the content of the emails.

13. Up until December 2019 overnight time was occurring on a regular basis between the children and the father.  Orders were made by the Court in April 2020 which reinstated overnight time between the children and the father on Wednesdays and Saturdays in alternate weeks.

14. As the Independent Children’s Lawyer has stressed in her submissions, echoing Dr C, there have been really positive observations made of the interactions between both these children, and both their parents. It is not always the case that the Court sees such delightful reports about children when their parents are in dispute, as are evident in Dr C’s report.  For all of the argument and disputation between the parties, both parents and particularly the mother, given she has had the majority care of the children, have done an excellent job in promoting their interests.

15. Unfortunately, the children are aware of the dispute between their parents. That is clear from various comments made by the children to Dr C with respect to arguments between their parents. These include them sitting on the steps hearing their parents swearing at each other, X referring to her mother knocking the phone out of her father’s hands so that it smashed, and the father trying to remove Y from the mother whilst she was holding him.  Seeing these things are the antithesis of what I am sure both of these parents would wish for their children.

16. Otherwise, both parents have been able to support very positive relationships between the children and the other parent.  They have also supported the children’s relationships with their extended maternal and paternal families.  As Dr C notes, these relationships are extremely important for both of these children.  Dr C suggests, in an opinion I share, that it would assist these parties to focus on those positive relationships that the children have with each of them, rather than the disputes they have with each other. 

17. The parties have been able to make some time arrangements by agreement between them, which is pleasing.  Indeed, in the most recent October school holiday period, there was an agreement for an extension of time to accommodate four nights with the father.

18. The father seeks to have the time increase from Friday to Monday in one week, and Tuesday to Thursday in the other week.  The mother seeks a more limited time arrangement, where the children spend time with their father in school terms overnight on Tuesday in one week, and from 9am Saturday to 5pm Sunday in the other. During the two week school holiday periods, the mother seeks that the children spend time with the father from Tuesday to Thursday in week 1, and from 5pm Thursday to 5pm Sunday in week 2. She then seeks other orders with respect to time over the Christmas period. The extent of the time the children spend with the father is six nights at its maximum.

19. The orders made in April 2020 have by and large worked reasonably well.  There was an incident between the parties in May 2020.  I raised with counsel for the mother that it seemed unfortunate that the children had been involved in a dispute between the parents, where the mother called the police to effectively arbitrate. I accept what Mr Jackson puts, that it was a stressful time in May 2020 for the community at large.  There were some areas of confusion about what was permitted by state government rules with respect to the pandemic.  However, involving the police in the manner in which it happened was unfortunate for these children.  Nonetheless, time has occurred by and large without difficulty. 

20. Looking at the matters to which I must have regard, firstly, the benefit to the children of a meaningful relationship with each of their parents.  It is clear that they both benefit from a meaningful relationship with each of their parents, which would be promoted by all the proposed time arrangements.  

21. In terms of the risk to the children of abuse, neglect, or family violence, it is clear from Dr C’s report that he does not regard the children as being at such risk.  It has been raised by counsel for the mother that there may be a risk if time arrangements occur in a manner she finds difficult to sustain. There is very limited evidence that supports that submission.  The arrangements in place for a considerable time during 2018 and 2019 suggest that the mother was able to manage and maintain extensive time between the children and the father.

22. The children have been exposed to arguments and shouting between their parents.  It is important that orders delineate the time so that the possibility of conflict is limited. 

23. In terms of the nature of the relationship between the children and their parents, it is clearly extremely good.  That is obvious from Dr C’s report.  The children have positive relationships with both of their parents.  The father has suggested he is better at some aspects of parenting, in terms of organisation.  I accept on the evidence both parents have the capacity to parent these children, both of them have done so, and have done so well.

24. There have been issues with the emails sent by the father which could be regarded as undermining the mother.  From the submissions of Mr Jackson, he urges me to regard that as conduct moving into coercive controlling behaviour.  The mother noted with Dr C that her views about family violence within the relationship emerged post-separation following counselling.  It would be difficult for me to make any particular findings, other than with respect to the emails sent to the school and the pre-school.  Sending those emails undermined the mother’s relationship with the children, and their community.  Whilst the mother was not aware of it at the time that it was happening, it was inevitable she would find out and I accept it was undermining of her.  

25. The difficulty that is confronting the Court is appropriate time arrangements to meet these children’s needs.  In my view these children need to spend time with their father that increases the current arrangements.  Time has been going well, and the children appear to delight in their relationship with their father.  The parties need to see the children benefit from the time, and that the parties do not engage in any further conflict.  That will be assisted by orders that, as far as possible, provide for pickups and drop offs to and from school.  This will become easier once Y starts at school next year.

26. I propose for the immediate that from 23 October 2020 the time increase to alternate weekends after school Friday to 5pm Monday and one overnight in the off week.

27. Y is starting school next year.  That can take some adjustment for children, as school is quite different from childcare.  The arrangements should continue until the beginning of Term 3, 2021.  Time will then increase from Tuesday to Thursday, to accommodate an additional night in the off week.   

28. There are a number of orders sought by the Independent Children’s Lawyer which I understand I can make by consent.  There is now an agreement between the parties about time at Christmas, at least on this interim basis, from 4pm Christmas Eve to 4pm Boxing Day with the father this year, and the same time with the mother for the 2021 Christmas period.

29. The other aspect is phone calls and other communication.  The father has sought that he and the mother be able to communicate with the children each day.  It was readily conceded that might be excessive.  Parties can find it intrusive.  It can be difficult if children are busy, tired or having bath time.  It can becomes a source of conflict rather than a source of communication.  I would be concerned that may occur in this case.  There are current orders with respect to telephone communication.  It is my understanding that by and large, that has been reasonably successful. I propose leaving those orders in place. 

30. Otherwise, there are a number of orders now in agreement sought by the Independent Children’s Lawyer.  She has submitted that the restraints made in the previous orders in April 2020 should remain.  That includes, for example, both parties not consume in excess of the level of alcohol that is permitted to operate a car in New South Wales.  Neither party raises any complaint about their capacity to comply.  Given the difficulties of making findings with respect to interim orders, I propose those restraints being retained.

31. There is a dispute between the parties with respect to the costs of Dr C’s report.  The father was ordered at first instance to meet the costs.  Both parties are legally represented, and participating in proceedings.  There is limited evidence about the parties’ respective financial positions. The mother should meet one half of the cost of Dr C’s report, and within 28 days of these orders pay the sum of $9,350, being half of the costs of the appointed single expert Dr C to the father into an account as nominated by him in writing.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Boyle

Associate:

Date: 4 December 2020