ROGERS & LENARD (No.3)
[2010] FMCAfam 839
•6 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ROGERS & LENARD (No.3) | [2010] FMCAfam 839 |
| FAMILY LAW – Children – parenting orders – interim orders – further orders after consent orders – time spent by the children with the father on weekdays and weekends during school term time. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA |
| Rogers & Lenard [2010] FMCAfam 764 Rogers & Lenard (No.2) [2010] FMCAfam 830 Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286 |
| Applicant: | MR ROGERS |
| Respondent: | MS LENARD |
| File Number: | SYC 1585 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 5 August 2010 |
| Date of Last Submission: | 5 August 2010 |
| Delivered at: | Sydney |
| Delivered on: | 6 August 2010 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Sweeney |
| Solicitors for the Applicant: | Sweeney Tiggemann |
| Solicitor for the Respondent: | Mrs Green |
| Solicitors for the Respondent: | Streeterlaw |
ORDERS UNTIL FURTHER ORDER
The children [X] born 2003 and [Y] born 2005 are to spend time with the Applicant Father during school term time as follows:
(a)From 3:00pm each Tuesday until 9:00am on Wednesday; and
(b)Each alternate weekend from 12:00 noon on Saturday until 6:00pm on Sunday commencing on Saturday 7 August 2010.
For the purposes of Order 1(a) the Father will collect the said children from their school on the Tuesday afternoon and return the children to their school on the Wednesday morning.
For the purposes of Order 1(b) the Father will collect the said children from the Mother and return them to the Mother at the [shopping centre omitted] at [R] New South Wales outside the front of the Woolworths store.
Notwithstanding the provisions of Order 1(b), if Mother’s Day should fall on a Sunday when the children would otherwise be spending time with the Father, then the children will not spend time with the Father on that weekend but will spend time with the Father on the following weekend instead.
The Father is to do all things necessary to ensure that the children are taken to and from any ballet class or sporting commitment or social engagement that is to take place during the periods that the children are spending time with him in accordance with these orders.
IT IS NOTED that publication of this judgment under the pseudonym Rogers & Lenard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT Sydney |
SYC 1585 of 2010
| MR ROGERS |
Applicant
And
| MS LENARD |
Respondent
REASONS FOR JUDGMENT
Applicant
This is another application for interim orders relating to the parties’ two daughters, [X] and [Y], who are 6 years and 10 months and 5 years of age. The parties have agreed to consent orders that provide that:
a)They should have shared parental responsibility for the children;
b)The children should live with the Mother;
c)The parties should communicate by telephone with the girls when they are in the care of the other parent;
d)The children would spend defined school holiday time with the Father; and
e)There would be special arrangements for Christmas and Easter.
They are unable to agree about the time that the children should spend with the Father during the week in school term time, and what activities should take place.
Background
As has been set out in a previous decision (Rogers & Lenard[1]), the parties were married [in] 1993 and have been separated since 28th February 2009. Divorce proceedings between them remain pending and have been adjourned to 12th of this month before a Registrar.
[1] [2010] FMCAfam 764
The Father was born [in] 1968 and is 42 years old. The Mother was born [in] 1968 and will turn 42 later this month. They are [omitted] by profession.
There are two children of the marriage. [X] was born [in] 2003 and [Y] was born [in] 2005. They have been living with the Mother since separation.
The Mother relocated the children’s residence to Melbourne on 28th May 2010. However, orders were made that she should return the children to reside in the Sydney Metropolitan area on 9th July 2010 (Rogers & Lenard[2]).
[2] supra
On 28th July 2010 the Court heard submissions about further interim orders that the parties sought and dismissed the applications for reach order (Rogers & Lenard (No.2)[3]). The parties were unable to agree on that day to any parenting orders relating to the time spent with the Father once the Mother had returned to live in Sydney with the children.
[3] [2010] FMCAfam 830
On 5th August 2010 the parties entered into the consent orders referred to in [1] above. However, they are unable to agree on the time that the children should spend with the Father during the week and on weekends during school term time.
The Father’s Proposals
The Father proposes three different options for the children to spend time with him during the week:
a)Option 1 – from 3:00pm on Monday until 9:00am on Tuesday;
b)Option 2 – from 3:00pm on Tuesday until 9:00am on Wednesday; or
c)Option 3 – from 3:00pm on Wednesday until 9:00am on Thursday.
As for weekends, the Father proposes that the children should spend time with him each alternate weekend from 12:00 noon on Saturday until 6:00pm on Sunday.
Changeover would take place at the [omitted] Food Court on weekends and at the children’s school on week days.
The Father would take the children to and from their sporting and ballet activities, but objects to the children attend pre-university training or other out of school hours tuition.
The Mother’s Proposals
The Mother proposes three options for the children to spend time with the Father during the week:
a)Option 1 – from 3:00 pm to 8:15pm on Monday;
b)Option 2 – from 3:00pm or 4:30pm, at the Father’s option, on Monday or Wednesday; or
c)Option 3 – from 3:00pm on Friday until 9:00am on Saturday.
As for weekends, the Mother proposes that the children spend time with the Father each alternate weekend from 6:15pm on Saturday until 5:00pm on Sunday.
Changeover would take place at the [shopping centre omitted]
The Mother seeks an order that the Father should take the children to and from their sporting and other activities, including ballet, pre-university new college, and Nippers between September and March.
Submissions on behalf of the Father
The Father’s solicitor submitted that the Father preferred to have the children with him from the Monday afternoon until the Tuesday morning, so that he could take them to school. He has some commitments in his employment as a [occupation omitted] which involves him on Saturday mornings and at some other time [activity omitted].
The Father supports the children being involved in ballet but is vehemently opposed to their being involved in the pre-university new college or other academic tuition out of school hours, because he does not believe that the children are gifted or talented.
Submissions on behalf of the Mother
The Mother’s solicitor submitted that the children were either gifted or talented and that this tuition was therefore in their best interests. She preferred the Tuesday as the best day for the children to be with the Father during the week.
The Mother’s opposition to the children spending overnight time with the Father on a weekday centres on the fact that the children may have to take different school uniforms with them, because on some days they have school sport.
The Relevant Law
The best interests of the children are the paramount consideration when a court is considering making parenting orders (Family Law Act 1975, s.60CA). The Court determines what is in the children’s best interests by considering the matters set out in s.60CC, which includes the primary considerations in s.60CC(2) and the additional considerations in s.60CC(3).
The Court must always consider whether the presumption in s.61DA that it is in the best interests of the children to have equal shared parental responsibility does apply (Goode & Goode[4]). If a parenting order provides that the children’s parents are to have equal shared parental responsibility, the Court must consider whether it is in the children’s best interests to spend equal time with each of the parents (s.65DAA).
[4] [2006] FamCA 1346; (2006) FLC 93-286
Conclusions
Neither party referred to any evidence. The matter was conducted wholly on submissions.
It is in the children’s best interests to have a meaningful relationship with both parents. This must involve their spending a reasonable amount of time with him, which the Mother’s proposals do not do, in my view. There does not appear to be a valid reason why the children should spend slightly less than one entire day with their father on alternate weekends, as the Mother proposes.
Similarly, the Mother’s proposal that the children spend from 3:00pm on Friday to 9:00am on Saturday with the Father appears to be quite impractical, bearing in mind the Mother’s other proposal that the children spend from 6:15pm on Saturday to 5:00pm on Sunday with the Father on each alternate weekend. No justification has been offered for this arrangement, which does not appear to have been thought through at all.
The Mother’s opposition to the children spending overnight time with the Father during the week is based on a concern about school uniforms, which seems to be a flimsy reason for requiring the children to spend such a short time with the Father. The Mother’s proposals would appear to involve a lot of travelling for the girls for relatively short time with the Father.
The Father is strongly opposed to the children attending the pre-university tuition on a Saturday afternoon, as he does not share the Mother’s view that they are either gifted or talented. No evidence has been offered by either party on this point, and it is therefore impossible to make a decision one way or the other about this issue. According to the Mother’s minute of proposed orders, the children would be required to attend each Saturday from 1:30pm until 4:45pm. This appears to cut severely into the Father’s time with the girls on a weekend and I doubt that this is in their best interests. The question of the desirability of the children attending such tuition is one that should be argued at a final hearing, with appropriate evidence. It is not a matter for an interim hearing without evidence and I will make no order requiring the Father to involve the children in this program.
The Mother has offered an ungenerous amount of time for the children to spend with their father without providing any adequate reason, which calls into question her willingness and ability to facilitate and encourage a close and continuing relationship between the children and their father (s.60CC(3)(c)).
The parties entered into consent orders yesterday providing that they should have shared parental responsibility for the children, which presumably means “equal shared parental responsibility”. It is inappropriate to revisit that issue (s.61DA(3)). Equal time with each parent appears to be unworkable, as the parents do not appear to be able to communicate or negotiate about what is in their children’s best interests (s.65DAA).
I am satisfied that it is in the children’s best interests that they spend from 3:00pm each Tuesday afternoon until 9:00am on Wednesday morning of each week with the Father. He is to collect them from school and return them to school.
On weekends, the children should spend from 12:00 noon on Saturday until 6:00pm on Sunday on each alternate weekend with the Father. Changeover should be at the [shopping centre omitted] at [R], in front of the [omitted] store. A public place is necessary because of the animosity between the parties. I note the Mother is subject to a good behaviour bond imposed by the [K] Local Court on 15th April 2010 as a result of an assault on the Father.
Whilst it was not argued before me, I consider it appropriate to ensure that the children should spend time with their mother on Mother’s Day.
The parties are due to attend a conciliation conference with a Registrar of the Court later this month in respect of property proceedings. The application will be adjourned to a suitable date for mention in September 2010, at which time directions will be made for a final hearing. The parenting proceedings would appear to require a Family Report, and I will deal with that issue on the next occasion.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 6 August 2010
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