Rimmer and Sheen

[2017] FCCA 116

FEDERAL CIRCUIT COURT OF AUSTRALIA

RIMMER & SHEEN [2017] FCCA 116

Catchwords:
FAMILY LAW – Interim parenting – best interests of children.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65D

Cases cited:

Banks v Banks (2015) FamCAFC 36
Eaby & Speelman (2015) FLC 93-654
Goode & Goode (2006) FLC 93-286
Marvel v Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348

Applicant: MS RIMMER

Respondent: MR SHEEN

File Number: PAC 2407 of 2016

Judgment of: Judge Newbrun

Hearing date: 6 December 2016

Date of Last Submission: 6 December 2016

Delivered at: Parramatta

Delivered on: 30 January 2017

REPRESENTATION

Solicitors for the Applicant: Coode & Corry

Solicitors for the Respondent: Mcintosh Mcphillamy & Co Legal Services

ORDERS, PENDING FURTHER ORDER

1. The children, X born (omitted) 2008, and Y born (omitted) 2010 (“the children”), shall during school term times spend time with the Father on a fortnightly basis from after school Friday to before school Monday morning. Changeovers shall occur at the children’s school.

2. If the Father’s weekend falls on a weekend when Friday is a public holiday, then the Father will collect the children from school on Thursday afternoon and return the children to school Monday morning.

3. If the Father’s weekend falls on a weekend when Monday is a public holiday, then the Father will collect the children from school on Friday afternoon and return the children to school Tuesday morning.

4. The Mother’s application for an interim parenting order, in terms of her proposed interim order 9 referred to in her Initiating Application filed 27 May 2016, is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2407 of 2016

MS RIMMER

Applicant

And

MR SHEEN

Respondent

REASONS FOR JUDGMENT

Introduction

1. This interim hearing concerned the children X born (omitted) 2008, and Y born (omitted) 2010 (“the children”).

2. The parties reached significant agreements at this interim hearing and consent interim parenting orders were made by the Court; see Exhibit A.

3. However, the parties asked the Court to judicially determine two discrete issues on an interim basis.

4. The first issue was the Mother’s proposed interim order 9 in annexure A to her Initiating Application filed 27 May 2016, relating, inter alia, to the Father taking the children to all school and other extracurricular activities during the time the children spend with him. This proposed order 9 was opposed by the Father.

5. The second interim issue for which the parties sought a judicial determination was the Mother’s proposal that the time that the children spend with the Father during school term times be on a fortnightly basis from Friday after school to Sunday 4:00pm, as opposed to the Father’s proposal that the children spend such time with him on a fortnightly basis from Friday after school to Monday before school.

6. The Father relied upon his Affidavit filed 26 July 2016, and his Case Outline dated 2 December 2016.

7. The Mother relied upon her Affidavits filed 27 May 2016 and 2 December 2016.

Evidence

1. The Father is aged 33 years. He is a self-employed (occupation omitted). The Mother is aged 29 years. Her occupation is home duties.

2. The parties’ relationship commenced in 2005 and ended in April 2011.

3. Both parties have re-partnered and married again.

4. For a period of time after separation the Mother and the children lived with either the Father’s parents or the Mother’s parents. Before the child Y turned one year of age, the Father was spending every second weekend with the children.

5. The parties attended mediation in early 2013. After mediation the Father’s weekend time increased to include Sunday evening. Thereafter the Father would deliver the child X to school Monday morning and return Y to the Mother’s home on Monday morning. The Father would take the children to (hobbies omitted) on weekends when the children were in his care; however this was at a time when the Father was living in the Mother’s area.

6. In late 2013 the Father and his new partner purchased a property at (omitted) (a town (omitted)), being about an hour and 15 minutes’ drive from the Mother’s home at (omitted). After that purchase, the children would spend weekend and holiday time at the Father’s new home.

7. In March 2015 the Father secured employment with a company based in (omitted). The Father moved to (omitted) at the time. The Father’s new partner, and the children A, and B, moved there in November 2015. According to the Mother, the Father moved to (omitted) in about late December 2015/early January 2016. The Father’s weekend time with the children did not alter. He still collected the children on Friday afternoon and drove back to the Mother’s residence on Monday mornings.

8. The child Y started school in 2016. The child X had started school previously. The Mother states that the Father was late to arrive with the child Y at the Mother’s home on the first day of school for the child Y in kindergarten. The Mother states that she quickly got this child ready in his school uniform and took him to school; the Mother does not state whether the child and herself arrived at the school in time for the 10:00am start that day. The Father states that he had telephoned the Mother to state he was running late.

9. In 2015 the Mother registered both children for (hobby omitted). Since the children began playing (hobby omitted) the Father has been living at (omitted).

10. At the beginning of the school year in 2016, the Mother enrolled the child X in (hobby omitted) lessons as an extracurricular activity organised by the school. The (hobby omitted) lesson was at 7:55am on a Monday morning at the school. The parties are in dispute as to whether the Father agreed to take this child to the (hobby omitted) lessons on a Monday morning.

11. In late February 2016, the parties exchanged text messages relating to the Mother’s wish for the Father to ensure that he took the child X to the (hobby omitted) lesson. The Father stated that he would try to take this child to the (hobby omitted) but that he would not always be able to do so and the same went for (hobby omitted). The Mother responded that it was not the children’s fault that he moved to (omitted) and that the children’s schooling and after school activities should not suffer because of the Father’s decision.

12. On Monday, 29 February 2016 the Father sent a text message to the Mother stating that he was stopping in to get the children’s clothes for school. The Father was running late to have the children ready for their start at school that morning. Ultimately, the Mother’s new partner, after the Father had dropped the children off at the Mother’s home, took the children to school at 9:30am, noting that the children were supposed to start school at 8:55am. In the Mother’s Affidavit filed 27 May 2016, she states that 29 February 2016 was the second time that the children were not delivered to school on time on the Monday morning in 2016 by the Father.

13. The Father stated that the child’s (hobby omitted) lesson is not a part of the school curriculum and is a private arrangement. It is a separate thing to the school band as the school band activities are done in school time. The Father stated that the child’s (hobby omitted) teacher said that at the level he is at, it would not be a problem if he missed every second Monday.

14. The Mother asserts that the children have told her that they had asked the Father to take them to a birthday party they wanted to go to on a weekend that the Father was spending time with them this year. The Mother states the Father refused. The Father disputes these assertions and states that the children have never asked him to take them to a birthday party.

15. In this context, the Father states that if he is given sufficient notice, it may be that he could take either of the children to a birthday party on the weekend that they spend time with him. The same is said by the Father for their sporting commitments. The Father states that he would like the boys to spend their weekends with him and their extended family. He states however, that if one of the children was playing in the (hobby omitted) final that he would ensure that they did not miss the game.

16. The Father states that as he does not live in the Mother’s area any more it is not practicable for him to take the children to all their games and training when they are spending time with him. He states that he is unable to commit that he would be able to take the children to every extracurricular activity or social event that falls on his weekends. He states the boys are still very young. He states that he would not obstruct the children in pursuing higher levels of extracurricular activities if they showed a particular flair or talent in an activity as they got older.

17. The Father pays Child Support to the Mother as assessed through the Child Support Agency.

18. The Father states that the children have told him that they are doing (hobby omitted) after their (hobby omitted) finishes. (hobby omitted) is on a Saturday morning at 8:00am near the Mother’s home. The Father states that if the children want to do (hobby omitted) he will make enquiries about enrolling them in (hobby omitted) at (omitted).

19. The Mother states that since about mid-May 2016 the children had been spending supervised time with the Father for 4 hours each alternate Saturday afternoon and some additional supervised time for special occasions and during the October 2016 school holidays. The supervision is by the paternal grandmother.

20. The Mother states that the children have told her that they would like to participate in (hobby omitted) again in 2017 and she intends to enrol both of them with the same (hobby omitted) club as before.

Submissions of the parties

1. The Mother submitted, inter alia, that on two occasions between the commencement of school in 2016 and about mid-April 2016 (being the last occasion when the Father spent unsupervised time with the children; thereafter he spent time with the children supervised by the paternal grandmother for four hours on fortnightly Saturdays and to date), the Father had failed to have the children ready for school on those Monday mornings when the children were returning from his care to school. The Mother has serious concerns as to whether the Father will be able to regularly ensure that the children are delivered to school on Mondays after the children have been in his care, if the children are permitted to spend time with him from Friday after school to Monday before school fortnightly.

2. The Mother also submits that her proposed order 9, relating to the children being required to attend their school and other extracurricular activities when spending time with the Father will be in their best interests.

3. The Father submits, inter alia, that the evidence relating to his lateness on the first kindergarten school day of the youngest child Y does not indicate that the child arrived late for school that day which was 10:00am. He submits that in relation to the Mother’s proposed interim order 9, that it is not practicable for him to ensure that the children attend every extracurricular activity that the Mother has organised for the children in her area at times that the children are spending time with him. He is further concerned that proposed order 9 carries the potential for the Mother further scheduling activities for the children when they are spending time with him.

4. The Father submits that the children’s meaningful relationship with him will be maintained and enhanced if the children are able to spend time with him from Friday after school to Monday morning before school on a fortnightly basis without the imposition of the Mother’s proposed order 9, which if complied with by the Father, would result in him spending a significant amount of the children’s weekend time with him travelling. The Father submits that should the children spend time with him fortnightly from after school Friday to before school Monday morning, he will be able to participate in getting the children ready for school on Monday mornings when spending time with him.

Relevant legal principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well-settled: see Goode & Goode (2006) FLC 93-286.

2. In Marvel & Marvel (2010) 43 Fam LR 348, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:

   [120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   [122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   [123] Later, at paragraph 100 their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

3. Of this, the Full Court in Eaby & Speelman (2015) FLC 93-654 said at 80,332:

   [80]. As would be immediately apparent, this approach enables the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.

4. The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks & Banks (2015) FamCAFC 36, especially at paragraphs 46 to 52.

   Consideration of the s 60CC factors that are relevant

   [46] In order to determine whether it is in the child’s best interests to remain in Thailand pending trial, we must consider matters arising under s 60CC.

   [47] As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.

   [48] It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.

   [49] Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.

   When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

   [51] In our view, the undisputed facts here lead inexorably to the conclusion that it would not be in the child’s interests to be required to move to Australia pending the trial. In arriving at this conclusion we ought to record, without condescending to particulars, that it is arguable the primary judge was led into error in coming to a different conclusion by the way in which the case was presented to her.

   [52] In the following discussion, we will detail the most significant s 60CC factors we have taken into account in reaching our decision. The absence of discussion of any particular s 60CC factor does not reflect any failure to consider it. Rather, it reflects our assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors we specifically address.

5. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.

6. In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

7. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).

8. When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order: section 61DA(3).

9. If the presumption of equal shared parental responsibility in relation to the child applies, and it is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.

10. If equal time is found not to be in the child’s best interests, or impracticable as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 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 section 60CC, or impracticable.

11. If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC and 65D.

The Best Interests of the Children

Section 60CC Considerations

Section 60CC(2)(a) - the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration

1. It would appear that the children have meaningful relationships with both parents and would benefit from a continuance of those relationships.

2. The Court notes that for a not insignificant period before about April 2016, the Father was spending fortnightly weekend time with the children from Friday after school to before school Monday.

3. In the view of the Court, the children’s meaningful relationship with the Father will be maintained and enhanced if they are able to spend fortnightly time with him, during school term times, from after school Friday to before school Monday morning. The Father will be able to participate in the children’s regular school routine when getting them ready for school on Sunday evenings and/or Monday mornings when they are in his care, including travelling with them on the Monday morning before school. The Court is not satisfied at this interim stage that the Father’s lateness on at most two occasions in early 2016 (noting that the evidence does not clearly indicate that the youngest child Y arrived after 10:00am on his first day in kindergarten this year) in having the children ready for school on time indicates that there exists a significant risk that the Father is likely to be unable to cause the children to regularly attend school on time on Monday mornings when spending time with him. The Court accepts the Father’s submissions in this context.

4. Further, should order 9 of the Mother’s proposed interim orders be made by the Court requiring the Father to cause the children to be taken to all their school and other extracurricular activities when the children are spending time with him, there is a significant risk that the extent of the children’s time spent with the Father will be compromised through travelling time, and thereby there is a significant risk that their meaningful relationship with the Father will not be maintained and enhanced. The Court accepts the Father’s submissions in this context, and notes, inter alia, the distance between the parties’ residences, the present fairly young ages of the children, and the Father’s discussion with the child’s (hobby omitted) teacher.

5. The Court gives significant weight to this meaningful relationship primary consideration.

Section 60CC(2)(b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. Neither party contended that there was a “need to protect” issue in relation to the two discrete issues that the Court has been asked to determine.

3) (a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;

1. The Court notes the tender ages of the children.

3)(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

1. The children enjoy positive relationships with their extended families.

(3) c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity: to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

1. Both parties would appear to have taken such opportunities.

3) ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. The Father maintains that he pays Child Support.

(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: i)     either of his or her parents; or ii)    any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. Should the Court make an interim order that the children spend time with the Father during school term times on a fortnightly basis from Friday after school to before school Monday, the Court is of the view that the children’s meaningful relationship with the Mother should not be detrimentally affected. The Court also refers to its discussion above under the meaningful relationship primary consideration.

(3) e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. The Court refers to the meaningful relationship primary consideration discussion above.

(3)(f) The capacity of: each of the child’s parents; and any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs

1. Both parents would appear to have such capacities. The Father contends that the Mother has unreasonably enrolled the children in activities during their time with him which is disputed.

3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. The parties are in dispute as to the Mother’s assertions that the Father was not child focussed at various times during the relationship.

Equal time

1. Neither party seeks an equal time order. In any event, such an order would probably not be in the best interests of the children noting the significant distances between the party’s residences.

Substantial and significant time

1. Noting the parties’ agreements in Exhibit A, and should the Court make an order that during school term times the children spend time with the Father on a fortnightly basis from after school Friday to before school Monday morning, the combination of such times would probably represent substantial and significant time under the Act.

Conclusion

1. Evaluating the above primary and additional considerations under section 60CC of the Act, the Court is of the view at this interim stage that it would not be in the best interests of the children to make the Mother’s proposed interim order 9.

2. Further, evaluating the above primary and additional considerations under section 60CC of the Act, it will be in the best interests of the children on an interim basis to make Orders that:

   (1)   The children, during school term times, spend time with the Father on a fortnightly basis from after school Friday to before school Monday morning.

   (2)   If the Father’s weekend falls on a weekend when Friday is a public holiday, then the Father will collect the children from school on Thursday afternoon and return the children to school Monday morning.

   (3)   If the Father’s weekend falls on a weekend when Monday is a public holiday, then the Father will collect the children from school on Friday afternoon and return the children to school Tuesday morning.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date:  30 January 2017