RIDDLE & RIDDLE
[2010] FMCAfam 1086
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RIDDLE & RIDDLE | [2010] FMCAfam 1086 |
| FAMILY LAW – Parenting – interim – communication time – time to be spent. |
| Family Law Act 1975, ss.65DAA, 60CA, 60CC |
| Goode & Goode (2006) FLC 93 |
| Applicant: | MR RIDDLE |
| Respondent: | MS RIDDLE |
| File Number: | SYC 2313 of 2010 |
| Judgment of: | Monahan FM |
| Hearing date: | 13 August 2010 |
| Date of Last Submission: | 13 August 2010 |
| Delivered at: | Sydney |
| Delivered on: | 13 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Harper |
| Solicitors for the Applicant: | Delaney Lawyers |
| Counsel for the Respondent: | None |
| Solicitors for the Respondent: | Diana Perla and Associates |
ORDERS
THE COURT ORDERS THAT:
All extant applications be adjourned to this Court on 12 May 2011 at 9:30am for mention (“the mention hearing”).
All extant applications be adjourned to this Court on 23 June 2011 at 10:00am for final hearing (“the Final Hearing”) with an estimated hearing time of two (2) days.
The Applicant make, file and serve any amended Application and Financial Statement by no later than 4:00pm on 3 September 2010.
The parties attend a Conciliation Conference with a Registrar of the Family Court of Australia at the Sydney Registry on 26 October 2010 at 11:00am AND the solicitors for each party send to the other and the Registrar at least seven (7) days before the Conciliation Conference copies of:
(a)a completed Conciliation Conference document;
(b)a market appraisal or valuation of any asset or financial resource, the value of which is in dispute and valuations of any superannuation interests;
(c)the actual terms of orders required to give effect to their settlement proposal;
(d)if applicable, a copy of any apprehended violence order or restraining order that is currently in force; and
(e)a written confirmation by each party or their solicitor that:
(i)all relevant documents have been exchanged between the parties; and
(ii)the superannuation trustee of any fund that may be the subject of a splitting order has been accorded procedural fairness
AND IN THE EVENT that the matter does not settle at the Conciliation Conference the matter be listed for further directions and where a party has not complied with subparagraphs (a) to (e) herein the Court may consider submissions with respect to costs.
Pursuant to s.62G(2) of the Family Law Act 1975 (“the Act”), the parties and [X] born in 2005 (“the child”) attend upon a Family Consultant nominated by the Dispute Resolution Co-ordinator of the Federal Magistrates Court of Australia, Sydney Registry (“the Family Consultant”) for the purposes of the preparation of a Family Report to be given to the Court by 2 May 2011.
AND FURTHER:
(a)The Family Report address the issues in this dispute relevant to ss.60cc, 61da and 65daa of the Act and any other matters that the Family Consultant considers important to the welfare or best interests of the child;
(b)The parties comply with all reasonable directions and requests of the Family Consultant;
(c)The Family Consultant have leave to inspect the subpoenaed material produced to the Court;
(d)In the event that the Family Consultant is one appointed under reg.7 of the Family Law Regulations, then within seven (7) days of being notified of the Family Consultant, the legal representative for each of the party deliver to the Family Consultant copies of all relevant applications, responses and affidavits and Court orders filed by or on behalf of the party in the proceedings AND copies of any intervention or restraining orders currently in force;
(e)The Applicant and Respondent’s legal representative confirm with Family Consultant no later than seven (7) days prior to the scheduled interviews that the interviews will proceed on the dates allocated; and
(f)If either party proposes to have Family Consultant available for cross-examination purposes at the Final Hearing, then such party’s legal representative will notify the relevant Family Consultant well in advance of the Final Hearing and ensure that the Family Consultant is available to attend Court on the first morning of the Final Hearing at 11:00am.
The Applicant make file and serve any further affidavits or other material to be relied upon by the applicant not later than 21 days prior to the Final Hearing and no further affidavits are to be filed without leave of this Court.
The Respondent make file and serve any further affidavits or other material to be relied upon by the respondent not later than 14 days prior to the Final Hearing and no further affidavits are to be filed without leave of this Court.
In the event of any applicable filing, setting down, hearing, mediation or enforcement fee or fees (“the fees”) not having been waived, the party responsible for the payment of the fees or any of them pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Magistrates Court Regulations 2000.
On or before 4:00pm two (2) business days prior to the Final Hearing the solicitors for each party make file and serve an Outline of Case Document not exceeding ten (10) pages in the following format:
(a)In relation to parenting matters five (5) pages dealing with:
(i)a list of the documents to be relied upon;
(ii)a brief chronology listing significant events;
(iii)a table listing all of the assets, liabilities and financial resources claimed to be part of the pool, with the values contended for by each party;
(iv)a list of contributions claimed or contended for;
(v)a list of other factors relied upon (s.75(2) factors);
(vi)the percentage adjustment contended for;
(vii)the main contentions on disputes as to:
1. what items are to be included in the pool; and
2. the value of each asset in the pool;
(viii)a statement of the precise orders sought;
(ix)if applicable, whether the trustee of a superannuation fund has been afforded procedural fairness in relation to a proposed superannuation splitting order.
(b)In relation to property matters five (5) pages dealing with:
(i)a list of the documents to be relied upon;
(ii)a brief chronology listing significant events;
(iii)an outline of contentions with respect to:
1. whether the presumption of equal shared parental responsibility applies (s.61DA);
2. the considerations relevant to equal time and substantial and significant time (s.65DAA);
3. each of the considerations relevant to determining the best interests of the child(ren) (s.60CC factors); and
4. other relevant considerations (including, ss.60CG, 61F, 65DAB, 65DAC, etc);
(iv)any other matters relevant to the decision; and
(v)a statement of the precise orders sought.
THE COURT FURTHER ORDERS, BY CONSENT, THAT:
The parties have equal shared parental responsibility for the child.
The child live with the Respondent.
Until 11 October 2010, the child be enrolled and attend her current preschool between Tuesday and Thursday each week.
From 11 October 2010, the child be enrolled and attend at her preschool from Tuesday to Friday each week.
The child spend time with the Applicant during school holidays:
(a)In 2011/2012:
(i)During the holidays at the end of Terms 1,2 and 3 – for the first half of the school holidays, the dates of which are to be mutually agreed upon between the parties no later than 1 month prior to the commencement of the school holiday period.
(ii)For the holidays at the end of the school year, in Week 1, Week 3 & Week 5 of the school holidays, the dates of which are to be mutually agreed upon between the parties no later than 1 month prior to the commencement of the gazetted school holiday period.
(b)In 2013, and each alternate year thereafter:
(i)For one-half of all school holidays, being the second half of the school holidays;
(c)In 2014, and each alternate year thereafter:
(i)For one-half of all school holidays, being the first half of the school holidays;
(d)At such other times as agreed upon.
That the child spend from 10:00am on Christmas Eve to 10:00am Christmas Day in 2010 and each alternate year thereafter with the Respondent and spend from 10:00am Christmas Day to 10:00am on Boxing Day in 2011 and each alternate year thereafter with the Respondent; and from 10:00am on Christmas Day to 10:00am on Boxing Day in 2010 and each alternate year thereafter with the Applicant and from 10:00am on Christmas Eve to 10:00am Christmas Day in 2011 and each alternate year thereafter with the Applicant.
On the child’s birthday each year, the parties shall spend time with the child as mutually agreed and failing agreement, as follows:
(a)If the birthday falls on a preschool/school day when the child is with the Respondent, then the child shall spend from 6:00pm to 8:00pm with the Applicant;
(b)If the birthday falls on a weekend non-preschool/school day when the child is with the Respondent, then the child shall spend from 9:00am to 2:00pm with the Applicant.
(c)If the birthday falls on a preschool/school day when the child is with the Applicant then the child shall spend from 6:00pm to 8:00pm with the Respondent;
(d)If the birthday falls on a weekend non-preschool/school day when the child is with the Applicant, then the child shall spend from 9:00am to 2:00pm with the Respondent.
That the child spend Father’s Day with the Applicant and Mother’s Day with the Respondent from 9:00am to 6:00pm;
For the purpose of these Orders, school holidays will be deemed to commence on the Saturday immediately following the last day of school Term and conclude on the Sunday immediately prior to the commencement of the next school Term.
That in the event that either party proposes to take the child outside the Sydney Metropolitan area, that party is to advise the other 7 days prior to departure, and provide an itinerary, address and telephone number of where the child will be staying.
That whilst the child is on holidays with either party, that the party with the child shall facilitate telephone contact with the other party no less than twice a week prior to 6:00pm.
That both parties keep the other informed of their respective telephone numbers including land line and mobile numbers, addresses and notify each other of any change 48 hours prior to that change.
Both parties to authorise the child’s preschool/school to provide preschool/school notices, information, newsletters and preschool/school reports directly to each party.
Neither party shall denigrate or permit any other person to denigrate the other party or any member of the other party’s household to the child or in the presence or hearing of the child.
That the parties be permitted to enrol the child in her current preschool, [omitted] at Suburb A for 4 days each week from Tuesday to Friday and that each party ensure that the child attends preschool on the days that the child is in their care, and the Applicant and Respondent to be jointly responsible for and to pay the preschool fees as and when they fall due.
That the parties be permitted to enrol the child at [omitted] School or such other public school in the Suburb A area that the parties agree upon with the Applicant and Respondent to be jointly responsible for and to pay the school fees, uniforms and books as and when they fall due.
AND THE COURT FURTHER ORDERS THAT:
Commencing forthwith the child spend time with the Applicant in fortnightly cycles as follows:
(a)In the first week, from 1:30pm Thursday until 6:30pm Friday;
(b)In the second week:
(i)Until 31 December 2010 from 1:30pm Thursday until 6:30pm Sunday; and
(ii)After 31 December 2010 from 1:30pm Wednesday until 6:30pm Sunday.
For the purpose of paragraph 26 (a) the Applicant collect the child to and from preschool and return the child to the Respondent’s care at the conclusion of time.
For the purpose of paragraph 26 (b) the Applicant collect the child from preschool at the commencement of time and the Respondent collect the child from the Applicant’s residence at the conclusion of time.
Each party be permitted to contact the child between 7:30am and 9:00am and prior to 6:30pm on the days that the child is not with them.
Each party keep the other party informed about all of the children’s activities and their health, education and general development by the use of a communications book (or electronic equivalent) and inform the other parent as soon as is reasonably practicable (and no later than 3 hours after becoming aware) of any medical or health emergency involving the children or either of them.
AND THE COURT NOTES THAT:
(A)From 11 October 2010 the Applicant is to ensure the child is in preschool on Fridays.
(B)Pursuant to ss.65DA(2) and 62B of the Act 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 Riddle & Riddle is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2313 of 2010
| MR RIDDLE |
Applicant
And
| MS RIDDLE |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by MR RIDDLE (“the father”), who is seeking various parenting orders in relation to the child, [X], born in 2005 (“[X]” or “the child”). More specifically, the father is seeking final orders inter alia to the following effect that:
·the parties have equal shared parental responsibility for [X]; and
·[X] live with the father on an equal time basis.
The father’s application is supported by his affidavits filed in these proceedings and he is legally represented by Mr Harper of counsel today.
The respondent is MS RIDDLE (“the mother”), who, in her amended response filed on 6 August 2010, opposes the orders sought by the father and is seeking different parenting orders in relation to [X]. She is also now seeking various property orders in relation to this matter.
In relation to parenting, more specifically, the mother is seeking orders to the following effect that:
·equal shared parental responsibility for the child;
·[X] live with her;
·[X] spend time with the father on what will be described as a “four-ten” arrangement, that is four nights over a fortnightly period, in week 1, being Thursday overnight till Friday, and week 2 being Thursday until Sunday evening; and effectively from the end of April next year or the commencement of the second school term, a “five-nine” arrangement which will be from Wednesday after school until Friday before school, and from Thursday after school until Sunday evening.
The mother relies on her affidavits filed in these proceedings and she is represented by her lawyer, Ms Perla, today.
Background
It would appear the parties cohabited or were in a relationship between 2003 until 2009, separating in May of that year. These proceedings were commenced in April 2010.
Issues
As to the issues today, the parties, to their credit, narrowed the interim issues in dispute between them considerably. Whilst there is disagreement about their respective parenting history that would be relevant to this dispute, there has been significant agreement today on interim arrangements. While Ms Perla submitted that it was most ‘unfortunate’ that the agreement has only been reached today, the Court does draw some comfort that much has been agreed today.
Nevertheless the parties disagree on two issues:
·whether the father should spend time with [X] in a two-week cycle, as proposed by the mother, and whether that time in week 2 should end at either 6:30pm on Sunday, as proposed by the mother, or 10:00am, Monday, as proposed by the father; and
·whether telephone communication should be allowed between 7:30am and 8:00am.
Agreed facts
The parties have agreed that there should be an order today for equal shared parental responsibility.
The parties have also agreed that [X] should attend her present preschool on each Tuesday through Friday, commencing on 11 October 2010 and that the father can collect the child from her preschool on the days the child otherwise spends with him from 1:30pm. They have also agreed to the use of a communication book to facilitate essential communication about the child flying between the parents.
The parties have agreed for [X] to be enrolled as a student in a school as they can agree upon, or failing agreement, [omitted] School. They have also agreed on some, but not all, of the times that the father will spend time with the child until the final hearing can determine this issue of equal time or not. They have also agreed on ‘liberal’ telephone time between the child and the other parent, but disagree on one aspect of that, namely whether calls can be made between 7:30am and 8:00am in the morning.
Submissions
Each of the parties' legal representatives made submissions to the Court in relation to areas remaining in dispute. By way of summary, the father requested for an additional night, commencing October 2010, because he asserts that will better transition the child into a routine that will be necessary for the child when she commences school early in the new year.
Mr Harper, for the father, also submitted that the Court needs to consider whether the mother's proposal is in keeping with the legislation, in particular s.65DAA of the Family Law Act 1975 (“the Act”), or whether the father's proposal is more appropriate. It would appear that the father has flexible work arrangements, but some fixed classes which impact upon his request, or which may explain his request for telephone time to begin from 7:30am.
Ms Perla, for the mother, raised the reasonable practicality of the father's request to conclude what will be called the “week 2 time” to end on Monday mornings. The mother also raised issue with respect to the child's routine, particularly if Monday morning was indeed the order of the Court. She also raises whether an increase in the time spent by the child with the father before the commencement of second school term next year would actually benefit the child. She also asks the Court to accept that she is the more reliable witness in these proceedings.
Law and discussion
The Full Court of the Family Court decision of Goode & Goode (2006) FLC 93-286 (“Goode”), guides this Court's approach in making interim decisions and interim orders in relation to parenting disputes. At paragraph 81 of that decision the Full Court stated:
“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 that is applicable in this particular situation. The reality of an interim decision is that the Court cannot fully determine issues of credit today, as the evidence being presented by the parties is not being tested by cross-examination. That having been said, the Full Court in the Goode decision made it clear that the Court is required to follow the legislative pathway. In other words the relevant provisions of the Act, post the 2006 shared parenting amendments, must be followed in an interim hearing.
There is no issue of equal shared parental responsibility to be determined today. The dispute is essentially about the time that [X] will spend with her father and under what circumstances, and also in relation to telephone time. Given this outcome, the Court is still required to consider the issue of equal or substantial and significant time under s.65DAA of the Act. More specifically, whether this child's best interests would be served by making an order that she spends equal time, as the father seeks in his substantive application, or alternatively substantial and significant time, which the mother seeks in her applications, with each of the parents.
Either outcome requires the Court to consider whether the child spending equal time, or substantial and significant time, in lieu with each of the parents would be, firstly, in the child's best interests and secondly, reasonably practicable given the circumstances.
At this point it is noted that s.65DAA(3) stipulates that a child will only be taken to spent substantial and significant time if the time that the child spends time with the parent includes days that fall on weekends and holidays and days that do not fall on weekends and holidays. The Court is also required to consider whether the time that the child spends with the parent would allow the parent to be involved in the child's daily routine, and occasions and events of particular significance to the child.
With respect to the reasonably practicality issue, the Court is required to consider issues such as how far do the parents live apart; their current and future capacity to implement the arrangements; their current and future capacity to communicate with each other; the impact of those arrangements on the child, and anything else that the Court considers relevant.
Returning to the Goode decision, it is clear that the Court is required in a case such as this to identify the parties' competing proposals, identify the issues in dispute, and identify any agreed or uncontested relevant facts, as has been set out herein.
The best principle is articulated in s.60CA of the Act. To determine the child's best interests the Court is required under the legislation, in particular, to consider the primary and additional factors in s. 60CC of the Act.
Primary considerations: s.60CC(2)
Under s.60CC(2)(a) the Court is required to consider the benefit to [X] of having a meaningful relationship with both of her parents. At this point it is noted that "meaningful" does not necessarily mean "equal", but it clearly signifies that both parties should be involved with their children, and clearly signifies an expectation of time to be spent. The right of a child to spend time with each parent and extended family is clearly a right of the child's. Consequently the Court in all likelihood would need to give some considerable weight to this factor at the final hearing should such be needed.
The Court is also required under s.60CC(2)(b) to consider the need to protect a child such as [X] from physical or psychological harm and being subjected to or exposed to abuse, neglect or family violence. At this point there are no serious issues that on the evidence been presented by the parties. But that said, that there is no doubt it would be in [X]'s best interests to develop a meaningful relationship, not just with her mother but with her father, but that needs to be balanced in respect of protecting a child such as this from any harm and the like. There are some issues warranting investigation here, and the Court obviously needs to tread cautiously in any interim arrangements that will be necessary.
Additional considerations: s.60CC(3)
Issues such as the “views expressed by the child”, and the “nature of the relationship that the child has had with parents” will of course be flushed out in the fullness of time at a final hearing. The family report that will be ordered today will also assist the Court in this process, as will, of course the evidence of the parties.
The Court is also required to consider issues such as the “willingness and ability of the parties to facilitate a close and continuing relationship between the child and the other parents”. Clearly, on the material presented today the parties to their credit have agreed on much, and the Court is satisfied that pending a testing of the evidence each is trying to facilitate a relationship between the child and the other, and consequently they would be more likely to abide by what they have agreed today.
As to the issues of “any likely changes”, both accept the need for some change, it would appear, in their proposals, or for some changes to be implemented on the incremental basis as this child transitions to school.
As to “any other circumstances”, the Court does have some concerns about the travelling times that will be necessary, but that's not necessarily a criticism of the parties per se, but rather the reality of a busy city like Sydney can create additional burdens for parents with respect to changeover and the like because of its considerable traffic flow, etcetera.
Conclusion
Having considered the available evidence and submissions in light of the structured discretion within the Act, the Court is satisfied that aspects of the mother's proposal, as well as aspects of the father's proposal, would be in [X]'s best interests.
Commencing 11 October 2010, [X] will spend time with the father in a fortnightly arrangement in week 1, from 1:30pm Thursday, until 6:30pm Friday. In week 2, the child will spend time with the father from 1:30pm on a Thursday until 6:30pm on a Sunday until the end of 2010, and commencing in 2011 from 1:30pm Wednesday, until 6:30pm Sunday.
The father will collect [X] to and from preschool and return the child to the mother's care. There will also be an order today in respect of the requirement for the father to have the child in preschool from 11 October on the Friday.
The Court is also satisfied that the child would not be inconvenienced by receiving telephone calls from 7:30am in the morning and indeed this may assist her transition into school next year.
There is agreement today for equal shared parental responsibility and until further order by consent that [X] live with the mother. There will also be a notation that there is agreement with respect to a number of other paragraphs of the other orders sought by the mother.
There will also be orders to list the matter for final hearing in 2011 and the obtaining of a family report.
The right to reserve the reasons for this interim decision is reserved.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 20 October 2010
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