Rose and Rose

[2007] FamCA 217

FAMILY COURT OF AUSTRALIA

ROSE & ROSE [2007] FamCA 217

FAMILY LAW - CHILDREN - With whom a child spends time – Time 14 year old boy to spend with father during school terms

Family Law Act, 1975

FATHER: MR ROSE

MOTHER: MRS ROSE

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 1868 of 2004

DATE DELIVERED: 23 February 2007

PLACE DELIVERED: Albury

JUDGMENT OF: Brown J

HEARING DATE: 23 February, 2007

REPRESENTATION

THE FATHER: In person

THE MOTHER: In person

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Boyle

THE INDEPENDENT CHILDREN’S LAWYER: Harris Lieberman

Orders

IT IS ORDERED BY CONSENT

1. That the children, a son born in August, 1992 and a daughter born in June, 1996 live with the mother.

1. That the parties have equal shared parental responsibility for the children.

IT IS FURTHER ORDERED

1. That the son spend substantial and significant time with the father as follows :

   (a)in each alternate week, from the conclusion of school on Thursday until the commencement of school the following Monday;  and

   (b)in each other week, from the conclusion of school on Thursday until 9:00 pm. on Thursday.

IT IS FURTHER ORDERED BY CONSENT

1. That the daughter spend substantial and significant time with the father from 5:00 pm. Friday until 5:00 pm. Sunday in each alternate week. 

1. That the children spend further substantial and significant time with their father as follows :

   (a)for the first week of the school term holidays when the children are due to spend that weekend with the father, to conclude the following week on Friday at 5:00 pm. and when the mother has had the first week of the holidays, the father shall spend time from 5:00 pm. Friday at the end of the first week of the holiday until 5:00 pm. Friday in the last week of the holiday, noting that the last weekend of the holiday will be spent with the parent whose weekend it would ordinarily be;

   (b)during the Christmas holidays in 2007/2008 for the first week from 5:00 pm. Friday 21 December to 5:00 pm. 28 December, 2007 and from 5:00 pm. 4 January, 2008 for one half of the remaining school holiday period;

   (c)during the Christmas holidays in 2008/2009 and each alternate year thereafter, from the first Friday after Christmas for one half of the whole school holiday period;

   (d)during the Christmas holidays 2009/2010 and each alternate year thereafter, from the Friday after school concludes to the following Friday, and the remaining half of his holiday to occur in the last part of the school holiday period.

1. That the father be able to communicate by telephone with the children at any reasonable time, including by SMS.

1. That the parties be restrained from discussing with the children the time they spend with each of them.

1. That changeovers be effected by the father collecting the children from the parking bay opposite the mother’s home at the beginning of his time with the children and the mother collecting the children at the conclusion of the father’s time, from the bottom of the father’s driveway, or as otherwise agreed.

1. That the parties shall maintain an email account for communication between them about the children’s needs and the father shall SMS the mother if any email requires an urgent response. 

1. That the parties each co-operate in the daughter continuing to attend upon Ms P as recommended by the counsellor and the parties attend such times as the counsellor may request.

1. That the mother ensure that the daughter attend the “Seasons for Change” program at Centacare.

1. That the father and mother attend (separately) a Parenting After Separation course through the Upper Hume Community Health Centre, to be completed within six months.

1. That the mother and father each authorise the children’s schools to provide to each parent, copies of all school reports, school photograph order forms, notices of school events and the like.

1. That each of the parties keep the other advised of any medical emergency for either of the children.

1. That the mother advise the father by email should she be absent from home overnight and give the father the first option of caring for the children, noting that this is applicable for both children only.

1. That the children spend time with the father on Fathers’ Day and the father’s birthday for three hours, and should the children otherwise be with the father on Mother’s Day and the mother’s birthday, the father’s time be suspended for three hours on each of those occasions. 

1. That the independent children’s lawyer have leave to forward a copy of these orders to Ms P at the M Family Centre.

1. That all extant applications be otherwise dismissed.

1. That these proceedings be removed from the List of matters awaiting finalisation.

1. That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

2. That the reasons for judgment this day be transcribed and copies made available to the parties.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and a solicitor appearing as counsel.

AND THE COURT NOTES

1. That the parties agree to work with Ms P towards the daughter spending dinner with her father mid-week on a regular basis.

FAMILY COURT OF AUSTRALIA AT ALBURY

FILE NUMBER: MLF 1868 of 2004

MR ROSE

Father

And

MRS ROSE

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The parties have two children, a son (14) and a daughter (10).  In discussion with the independent children's lawyer, the parties have reached agreement on a raft of parenting orders, which is greatly to their credit.  It is a compelling realization of the objects and principles contained in the Family Law Act 1975 which stress the importance of parents cooperating in decisions about their children's welfare, and the importance of children having a meaningful relationship with both parents, and with other people of significance to them.

1. The orders the parties seek by consent are optimistic indicators for the children’s futures.  I can be confident that both parents want to rear two young people to be resilient adults who are able to form sound relationships with other people.

LEGAL PRINCIPLES

1. The provisions in the Family Law Act 1975 relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).

1. When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration.  In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.

1. There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA).  The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent.  The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.  The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply. 

1. If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).

1. I have read the affidavits on which the parties rely and the two family reports prepared by Ms D, the last of which is dated 5 January, 2007.  The chronology of the parties’ life together and events since their separation in 2004 are set out in Ms D's reports. 

Time the son is to spend with the father

1. The parties seek a determination from the Court as to the specific arrangements to operate for the son during school terms.  It is common ground that the son will be with his father in each alternate weekend, from 5 pm Friday to the commencement of school on Monday.  It is also common ground that he will spend some time on at least one other Thursday in each fortnight with his father.

1. The father's application is that in the first week of each fortnight the son be with him from the conclusion of school on Thursday until the commencement of school the following Monday and, in the second week, from the conclusion of school on Thursday until the commencement of school on Friday.  The mother seeks that, in the first week, the son be with his father from 5 pm. Friday until the commencement of school on Monday, and in the second week, from the conclusion of school on Thursday until 9 pm. that evening.

1. The independent children's lawyer has pointed me to the relevant evidence, particularly that contained in Ms D's report.  She has raised the potential for a compromise;  one extended weekend (from the conclusion of school on Thursday until the commencement of school on Monday) and dinner on Thursday evening in the alternate week.

1. There is good reason for the children to be treated differently, having regard to their respective ages and their different rates of adaptation to the new arrangements.  Their sibling relationship is important.  There is no doubt that the daughter gains a sense of security from the son’s presence.  They are normal siblings;  sometimes they get on and sometimes they do not get on but, at heart, they are close and look out for each other.  That does not mean they have to be together all the time.  As they get older their activities with friends away from the home will inevitably mean they are together less often. 

1. I commend the parties for the succinctness of their submissions.  I do not think a lawyer could have put it better.   

1. The mother saw it as better for the son that he come home after dinner with his father at 9 pm., to get ready for school the next day.  He is an organised boy.  She is concerned that he could become anxious if he forgets something at home or is worried about his homework.  The son has clarinet lessons on Friday and she saw some difficulties if he went straight to school from his father’s home on Friday morning.  He rides to school, and if he is to be with his father on Thursday evening he would need to take the clarinet to his father’s home on Thursday.  She is also keen for him to be able to spend time with the daughter. 

1. The daughter and her mother are at Guides on Thursday evenings.  The daughter is 10.  There is no evidence of her regular bedtime, but she is probably well on the way, if not tucked up, by 9 pm. on school nights.  But she may return later from Guides and thus might still be up were the son to come home at or soon after 9 pm.

1. From the husband's perspective, he is concerned to maximise his relationship with the son, particularly in light of the period in which he did not see him regularly.  I make it clear that in saying I do not understand him to seek make‑up time.  There is no equation to the effect : "I did not see a child for those years, so I am entitled to see him more now."  I understand the father's submission to relate to the importance of building their relationship now.

1. The father also submitted that one-on-one time with a teenage boy is likely to be good for him, and that is particularly so when one talks about one-on-one time with a father.  Male mentoring and role-modelling is important for teenage boys.  He would like to be able to assist with his son's homework.  He would like to be able to encourage him into more physical activity;  for example, he talked of the possibility of something like 10-pin bowling.

1. The paramount matter for the court are the best interests of the children.  To the extent necessary, parents' wishes and desires have to give way to those best interests.  I do take into account the son’s views as expressed to Ms D.  I have heard a little from his mother today about the son’s sense of where he would like to be.  These views are matters of weight, but they are not determinative, even for a 14-year-old boy. 

1. I do take into account the evidence of the son’s relationship now with his father and Ms D's opinion that the father is now committed to being a devoted and involved father.  She stressed the need for the father’s time with the children not to be limited to weekend and holiday periods only, as that is likely to impact on the quality and depth of his relationship with the children now, and in the future.  In her opinion, the children should be spending substantial time with the father in order to consolidate and develop their relationships. 

1. Having regard to all the evidence, and mindful of the unhappy events the family have endured in recent years, it is my view that the compromise proposed by the independent children's lawyer is a sound solution and likely to be in the son’s interests.  This will mean that in one week he will be with his father from the conclusion of school on Thursday until the commencement of school on the following Monday.  That will give his father a real opportunity to be involved in his school life, and to be responsible for ensuring he attends and has with him everything he needs. 

1. On that extended weekend, the son will be with his father for four nights in a row.  That is a considerable period of time.  The daughter will be there from 5 pm. Friday until 5 pm. Sunday.  In the intervening week, I am satisfied it will be in his best interests to have a meal with his father on Thursday and then return to his mother’s home.  The father and son can enjoy that time together;  when the daughter and the mother come home from Guides, they can spend some family time together on that evening.  It is a compromise, but I am satisfied it is one that is likely to be in the son’s interests, and also in the best interests of the daughter. 

1. I will make the balance of the orders by consent.

I certify that the preceding
21 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the          day of           2007.

…………………………………………
Associate.

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as ROSE & ROSE