Renkin and Renkin

[2013] FCCA 2025

FEDERAL CIRCUIT COURT OF AUSTRALIA

RENKIN & RENKIN [2013] FCCA 2025

Catchwords:
FAMILY LAW – Interim Parenting – recent separation – mother left home – children remain in the care of the father in home – parents geographically proximate to each other – no serious issues raised regarding parenting capacity or communication – equal time ordered pending receipt of private Family Report.

Legislation:  
Family Law Act 1975 (Cth) Part VII

Goode & Goode [2006] FamCA 1346

Applicant: MS RENKIN

Respondent: MR RENKIN

File Number: WOC 894 of 2013

Judgment of: Judge Altobelli

Hearing date: 12 November 2013

Date of Last Submission: 12 November 2013

Delivered at: Wollongong

Delivered on: 12 November 2013

REPRESENTATION

Solicitors for the Applicant: Rita Thakur & Associates

Solicitors for the Respondent: Karras Partners Lawyers

ORDERS

1. The mother be restrained from removing the children from the (omitted) District, except with the written consent of the father,

2. The father and mother shall each have equal shared parental responsibility for making all decisions in relation to the major long term issues concerning the children of the marriage, X born (omitted) 2006 and Y born (omitted) 2008 (“the children”), such major long term issues to include: -

   (a)The children’s education (both current and future);

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

   (c)The children’s health;

   (d)The children’s names; and

   (e)Changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with the other parent;

   and the parties shall consult with each other prior to making any such decision.

3. The father and mother to each individually have sole parental responsibility for making decisions concerning other aspects of the care, welfare and development of the children on a day to day basis during the periods when the children are in their care respectively.

4. The children shall live with each of their parents for alternating periods of four (4) consecutive nights during school term time as follows: -

   (a)The first period to be with the mother commencing today and ending 3:15pm Saturday when the children shall be returned to the father.

   (b)All subsequent handovers of the children to be undertaken at the end of the relevant school day, or 3:15pm if not a school day.

5. The children shall live with each of their parents during school holidays for alternating periods of 7 days commencing with the mother for such first period, calculated from the end of school on the last day of school term.

6. Each of the parties be and are hereby restrained by way of injunction from discussing these proceedings with the children or within hearing distance of the children.

7. Each of the parties be and are hereby restrained by way of injunction from denigrating the other party to the children or within hearing distance of the children.

8. Each party shall ensure the children attend all scheduled appointments, social activities and extracurricular activities when the children are in their care. 

9. The respondent file and serve a Response, Financial Statement and Affidavit in support of orders sought within 35 days.

10. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship participate in the preparation of an External Family Report and in particular:

    (a)to consider the factors in sections 60CC and 65DAA of the Family Law Act1975;

    (b)to consider issues raised in the Family Consultant’s Memorandum to Court;

    (c)to profile of the parents (and other significant adults);

    (d)to assess the parents interactions (and those of other significant adults);

    (e)to assess the children’s developmental and emotional state;

    (f)to assess the relationship of the children to the parents (and other significant persons);

    (g)to ascertain the wishes of the children unless inappropriate by reason of age or other special circumstance;

    (h)to assess the proposed and actual home environments; and

    (i)to assess the proposals of each party as to the children’s future.

11. That each of the parties shall be jointly and severally liable for the payment of the costs of the Family Report and any such additional costs of the Family Consultant to give evidence at Court if so required.

12. That the parties shall do all things necessary to facilitate the preparation of the Report of the said Family Consultant, including attending upon the said Family Consultant and arranging for the child to attend upon the Family Consultant.

13. The Family Consultant is granted leave to inspect all documents produced in response to Subpoena.

14. Following release of the Family Report and prior to the adjourned date, the parties file and serve a minute of final order sought by each of them as to parenting.

15. In the event that the Family Report has been released by the adjourned date both parties be in attendance in person on the adjourned date.

16. The matter be adjourned to 4 February 2014 at 9.30am for mention.

THE COURT NOTES THAT:

1. The parents have agreed that notwithstanding the terms of Orders made today, the children will spend time with the Father during the (religion omitted) Christmas, and the children will spend time with the Mother during the (country omitted) Christmas.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT WOLLONGONG

WOC 894 of 2013

MS RENKIN

Applicant

And

MR RENKIN

Respondent

REASONS FOR JUDGMENT

1. I provide the following extempore reasons in this matter.  The proceedings relate to two children, X who is 7 and Y who is 5.  The applicant is the mother.  She is 35 years old and describes herself as undertaking home duties.  The respondent is the children’s father.  He is 41 years old and describes himself as a (occupation omitted).  The parents appear to have commenced co-habitation in about 1995, married in 1996, separated in 2013 in July though there was a period of separation under the same roof, which became physical separation in early November. 

2. The issue that I need to determine on an interim basis is where the children should live and how much time they should spend with the other parent.  The evidence before consisted of the following:  There is the mother’s affidavit of 8 November and 18 October.  There is the father’s affidavit of 12 November.  Each party tendered some documents.  The mother’s proposal is contained in her Application in a Case filed 8 November 2014, as amended by her solicitor during submissions.  The effect of the mother’s proposal would be that the children spend time with their father for four out of fourteen nights of each week, plus after school each Tuesday, and then for half of the school holidays, but in five day blocks. 

3. The respondent father’s proposal is contained in his Response, as amended by a handwritten document that I will incorporate into the orders.  And the effect of the father’s proposal is that the children spend equal time with each parent during the school term that would be in basically, four consecutive night blocks and during the school holidays that would be in seven night blocks. 

4. The applicable law is, of course, Part VII of the Family Law Act.  The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of that section and the way to proceed. I will incorporate into these reasons a number of paragraphs from the Full Court’s judgment.

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   …

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   …

   82. In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

5. There do appear to be some uncontested facts from the evidence and these can be gleaned from a close reading of the affidavits and in any event, were highlighted by both Mr Baird and Mr Karras in their submissions.  Firstly, it is clear that the children and their father continue to live in the former matrimonial home whilst the mother lives in rented accommodation.  It seems common ground that where the parents live, and where the children’s school is located, are all geographically proximate to each other.  There are no issues of a practical difficulty and expense. 

6. It seems clear from the evidence of both the mother and the father that they were both involved in the parenting of these children before separation, though there is a dispute as to who was the primary carer, if indeed there was a primary carer.  It seems clear from the evidence and is relatively uncontested that they have tried forms of shared care for the children in the past, albeit not successfully.  The distinction though, being that they have tried periods longer than that which is now proposed by the father, for example. 

7. It is uncontested that they have tried, it would seem, in good faith family dispute resolution without success.  And it also seems to be an uncontested fact that Y suffers from a form of autism, though, he continues to function at a very, very high level.  It is uncontested that the mother left the former matrimonial home, leaving the children in the father’s care.

8. It is possible for the Court to form a number of strong impressions from the evidence before it.  For example, neither parent raises issues against the other that in any way seriously or in any meaningful way, questions their relationship with the boys or their capacity to provide for the boys.  And indeed, the clearest example of this is by looking at the proposals that they each make about the other’s time with the children, which are quite inconsistent with any serious concern about relationships or parenting capacity.

9. Another strong impression from the case is that this is a recent separation.  Though the difficulties in the relationship may be traced back some time, it is a recent separation where emotions are high and continue to be.  The communication between the parents is probably not optimal, but it is functional.  For example, when the mother needed the father to assist on short notice, she turned to him.  Whether he was able to assist or not is not pertinent.  The fact is that she turned to him and there is a measure of communication there.

10. Another strong impression is that if there was family violence in this relationship, it was historical.  Secondly, it is, in terms of it being recent, of low potency.  It does not follow a particular pattern.  And indeed, it may be reciprocal and/or mutual.  Another strong impression formed on the evidence of this case is that the parents and most importantly, the children need a stable, predictable routine for contact and communication.  Another strong impression that is formed from the evidence is that both X and Y appear to be quite used to having both their mother and father involved in their daily lives.

11. There are some concerns that arise on the evidence, but in respect of which no findings can be made.  Nonetheless, they should be recorded, even in an interim judgment like this.  Firstly, has the mother minimised the nature and extent of any psychological issues that she suffers?  Another concern is whether the father has minimised the nature and extent and the impact of his work and business commitments in terms of his availability to care for the children.  Another concern is that perhaps both parents have failed to appreciate the potential impact on X and Y of their separation and of changes to their household in consequent thereon, and here, I am particularly concerned about Y with the autism that he experiences. 

12. With all of those background matters taken into account, the mother’s proposal is problematic in its implementation for a number of reasons.  Firstly, it involves, if my mathematics is correct, at least, eight changeovers for the children in a fortnightly period.  The concern here is not so much the movement of the children from one physical place to another, but the movement of the children from one psychological place to another at a time of upheaval in their lives.  The other concern I have about the mother’s proposal is that it does not allow the children enough time with their father in circumstances where even on her evidence, there is a concession about the good relationship that exists between the children and the boys.  The other concern about the mother’s proposal is that it creates the greatest disruption to the children in terms of changes to their living arrangements. 

13. The father’s proposal, whilst not necessarily unproblematic, at least does not take the children away from their physical base, at least, for lengthy periods.  It does not take them away from him for lengthy periods.  And it minimises the weekly changeovers whilst optimising the time that the boys spend with each parent. 

14. The father’s proposal is therefore, on the basis of the very limited evidence that is before the Court, one that is in the best interests of the children.  It is an equal time arrangement that seems to be both reasonably practicable as defined in the Act and also in the children’s best interests.  I note, and I am very pleased to note, that the parents have agreed to obtain a privately funded family report.  The consequence of which, may well be that a report will be available to the Court and to the parties as early as 4 February, when the matter is next before the Court.

15. When one considers that most of the time between today and 4 February, will be school holidays, any potential adverse impact on the children of these orders is greatly mitigated.  Accordingly, for the reasons I have articulated the orders will be in accordance with those proposed by the father, as amended by his solicitor.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Altobelli.

Date:  29 November 2013