Sachar and Garrett

[2014] FCCA 2291

FEDERAL CIRCUIT COURT OF AUSTRALIA

SACHAR & GARRETT [2014] FCCA 2291

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – best interests of the children – parental responsibility – equal shared parental responsibility – three children aged 9, 7 and 5 years – where youngest child due to commence school in 2015 – children to spend overnight time with father during school terms – arrangements for Father’s Day – public holidays.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

Applicant: MR SACHAR

Respondent: MS GARRETT

File Number: SYC 2305 of 2014

Judgment of: Judge Scarlett

Hearing date: 30 September 2014

Date of Last Submission: 30 September 2014

Delivered at: Sydney

Delivered on: 1 October 2014

REPRESENTATION

Counsel for the Applicant: Ms Christie

Solicitors for the Applicant: Blanchfield Nicholls Partners

Counsel for the Respondent: Ms Boyle

Solicitors for the Respondent: Broun Abrahams Burreket

ORDERS

UNTIL FURTHER ORDER

1. The Orders made by consent on 30 September 2014 are confirmed with the exception of Order 8.1, which is discharged.

2. In addition to the Orders referred to above, the children of the marriage [X] born [omitted] 2005, [Y] born [omitted] 2006 and [Z] born [omitted] 2009 are to spend time with the Applicant father during the school term as follows:

   (a)Each alternate weekend from immediately after school on Friday until 5:00 pm on Sunday commencing on Friday 10 October 2014 PROVIDED THAT if the Monday immediately following the weekend is a public holiday then until 5:00 pm on the Monday;

   (b)Each Tuesday from immediately after school until 7:00 pm; and

   (c)Each alternate Thursday from immediately after school until 7:00 pm commencing on Thursday 16 October 2014.

3. The children [X], [Y] and [Z] are to spend time with the Applicant father on the weekend including Father’s Day in each year from immediately after school on Friday until the commencement of school on the following Monday morning.

4. The Applicant father and the Respondent mother are to have equal shared parental responsibility for the children [X], [Y] and [Z].

5. THE COURT NOTES that the father and the mother have agreed that the children [X], [Y] and [Z] will spend time with the father from 8:00 am on Sunday 5 October to 5:00 pm on Monday 6 October 2014.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2305 of 2014

MR SACHAR

Applicant

And

MS GARRETT

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for interim parenting orders in respect of the parties’ three children, two sons and a daughter, aged 9, 7 and 5 years. To their credit, the parents have agreed to Interim Consent Orders providing that, until further order:

   a)The children are to live with their mother;

   b)During school holidays, the children will spend time with each parent on a week about basis;

   c)Each party will ensure that the children will attend their usual sporting and other extra-curricular activities;

   d)If the father is unable to take the children to their commitments, he will give the mother 48 hours’ notice so that she may take them;

   e)If any of the children becomes distressed in the father’s care and wants to return to the mother’s care, the father will make the necessary arrangements;

   f)Each parent is to have liberty to telephone the children at all reasonable times when the children are in the care of the other parent;

   g)Changeovers are to be at the parents’ residences;

   h)The children are to spend time with the father on Father’s Day, with an unspecified finishing time, their birthdays and on Christmas Day and Boxing Day;

   i)The children will spend time with their mother on Mother’s Day, their birthdays and on Christmas Eve and Christmas Day;

   j)The parties will inform each other about any change of address or telephone numbers;

   k)They will advise each other promptly of medical emergencies and illnesses affecting the children;

   l)They will not discuss these proceedings with the children; and

   m)They will not denigrate each other or let anyone else do so in the children’s presence or hearing. 

The Issues

1. The parties are unable to agree about the amount of time that the children should spend with their father during the school term. This is a matter that they need to have resolved fairly quickly, as the school term commences next week. There is also an issue about when the children should return to the care of their mother after they have spent time with their father on Father’s Day.

2. As will be seen, and as I commented yesterday, the parties’ proposals are hardly light years apart from each other. The essential difference is that the number of nights on a weekend the children are to spend with the father.

3. The parties’ proposals are set out in Minutes of Proposed Orders provided by Counsel for the parties.

4. The father seeks the following arrangements:

   That the children spend time with the Father as follows:

   2.1    During Term 4 2014 on the basis of the following two weekly cycle:

   2.1.1.     Week 1, from after school Thursday to 7.00 pm Thursday; and

   2.1.2.     Week 2, from after school Tuesday to 7.00 pm Tuesday and after school Friday to before school the following Monday.

5. The mother, in her minute of Order, seeks this arrangement:

   That the children spend time with the Father as follows:

   2.1.  During school term:

   2.1.1.     From after school Friday until 5pm Sunday each alternate weekend.

   2.1.2.     From after school until 7pm each Tuesday.

   2.1.3.     That time pursuant to Order 2.1.1 commence the first Friday after the making of the Orders.

6. There is also an issue about the amount of time the children should spend with their father on the weekend that includes Father’s Day each year. Whilst Father’s Day is now eleven months off, the issue needs to be resolved.

7. The parties consented to an order that is incomplete as to the specification of the finishing time. It says:

   8.  Notwithstanding anything else contained in these Orders, the children will spend time with the father as follows:

   8.1.   From after school Friday to (blank) on the weekend including Father’s Day.

8. The father proposes that the children stay with him overnight on the Sunday night of that weekend he would take them to school on the Monday morning. The mother wants the children to be returned to her at 5pm on the Sunday afternoon, in line with her other proposed orders for the father to have weekend time with the children.

Background

1. In her Case Outline on behalf of the Respondent Mother, Ms Boyle of Counsel set out a chronology of events, which is relatively uncontroversial.

2. The father was born on [omitted] 1964. He is now 50 years of age.

3. The mother was born on [omitted] 1974. She is now 40 years of age.

4. The parties have been married twice.

5. They were married for the first time on [omitted] 1998. They separated in 2001 and were divorced in 2003.

6. However, they reconciled in November 2003 and were married for the second time on [omitted] 2004.

7. There are three children of the marriage.

8. [X] was born [omitted] 2005. He is now aged 9 years.

9. [Y] was born on [omitted] 2006. He is currently 9 years and 11 months old.

10. The parties’ daughter [Z] was born [omitted] 2009. She is 5 years of age.

11. The parties separated under the one roof in March 2011. They separated physically on 12 April 2013 when the father left the former matrimonial home.

12. The two boys attend school at [omitted] Public School but [Z] is too young to attend school.

Procedural History

1. The father commenced proceedings seeking parenting orders on 21 May this year. He originally sought final and interim orders providing that the children should spend time with the parties on a week-about basis, but this was not pressed at the interim hearing.

2. The parties attended a Child Dispute Conference with a Family Consultant on the 18^th of this month. Although the Family Consultant recorded that the parties did not reach agreement, she noted that the parties have an agreement already in place for the children to spend time with their father these school holidays, on 20 to 21 September, 22 to 23 September, 29 September to 1 October and 5 to 6 October.

3. There were some issues raised in the Child Dispute Conference which have been adverted to in the mother’s earlier affidavit. They concern the fears expressed by the child [X] that the father had threatened to kill him. The mother alleged that the father had threatened to kill her, or have her killed, but the Family Consultant noted that the mother seemed not to take these alleged threats seriously.

4. It was certainly put to me by Ms Christie of Counsel during the hearing of this matter yesterday, that this is not a “risk” case and, indeed, the submissions by Counsel for the Respondent, and the Orders sought by the Respondent, were not ones that would indicate to the Court that the mother was convinced that there was an unacceptable risk of harm to the children in the father’s care.

5. The mother’s concern is that the children have not spent a great deal of time on an overnight basis with their father since the parties separated, although Ms Christie of Counsel pointed out that the mother had returned to her native [country omitted] on two occasions for holidays and had left the children in the father’s care.  

6. The real issue between the parties is not whether the children should spend overnight time with their father, but how much and when. Whilst the mother had raised some concerns about the children spending time with their father after school and being returned later in the evening, it has been happening since they separated on Mondays and Thursdays. The mother is claiming that it disturbs the children’s routine. Counsel for the father submitted that this was not a great consideration, and that the children were also able to be in a routine with their father.

7. I found the mother’s later affidavit, which was sworn or affirmed on the 23^rd of September, to be quite informative. It is an up to date affidavit, and it describes the practical arrangements that have been in place. I note in paragraph [2] of the affidavit that the mother deposed that up till the commencement of the Term 3 school holidays, the children have continued to spend time with the father during the school term each Monday and Thursday, from 3:00 pm until 7:00 pm.

8. The mother deposed in paragraph [24] of her affidavit:

   I proposed, and Mr Sachar agreed, to the children spending short overnight periods with him during the September 2014 school holidays. The following was agreed to:

   24.1  Saturday 20 September 2014 from 8.00 am till Sunday 21 September 2014 at 10.30 am.

   24.2  Monday 22 September 2014 from 9.15 am till Tuesday 23 September 2014 at 5.00 pm.

   24.3  Monday 29 September 2014 from 8.00 am till Wednesday 1 October 2014 at 5.00 pm.

   24.4  Sunday 5 October 2014 from 8.00 am till Monday 6 October 2014 at 5.00 pm.[1]

   [1] Affidavit of Ms Garrett 23.9.2014 at paragraph [24]

9. It can be seen from this paragraph, and, indeed, the mother confirms this in her affidavit, that at the time she deposed to that affidavit the children had spent time with the father for the first two of those proposed arrangements.

10. The mother confirmed that in paragraph [27], saying:

    At the time of affirming this affidavit the children have spent two separate overnight periods with Mr Sachar during the September school holidays. The periods have been for a singular night on each occasion, and they have returned home without complaint.[2]

    [2] Ibid at [27]

11. Indeed, it appears to the Court that yesterday the children were spending time with their father in accordance with the arrangement, and they will be in his care until 5 o’clock in the evening. I note that there is one agreed period to go from 8 o’clock on Sunday morning until 5.00 pm on Monday afternoon.

ISSUES

1. So, what then is the controversy? It concerns the difference of opinion between the amount of overnight time, and indeed the amount of time, the father wants to spend with the children, and the amount of time, including overnight time, that the mother says would be appropriate and in their best interests. The concern on the part of the mother is that the arrangements should hasten slowly.

2. The Family Consultant adverted to this in the Child Dispute Conference Memorandum to Court noting that the children had spent regular time with their father for the past 18 months and at their ages it would be expected that they would be able to adjust to spending overnight time with him. However, this will depend on the father’s capacity to meet their needs and on the mother’s capacity to genuinely support such an arrangement. These issues will require further assessment.

3. It would appear to me that on the mother’s own affidavit of 23 September, where she appears to speak quite candidly about the arrangements, that one overnight period at a time for the children to spend with their father does not seem to have caused any difficulty. The children have spent time with their father for blocks of one night overnight and have returned without complaint.

4. It would not, then, take a large stretch of the imagination to arrive at the conclusion that the children could, perhaps, start spending more overnight time with their father during the school term, perhaps not as much as the father would wish, but more than just the one overnight period. This is where the difference in the weekend time arises. The mother is proposing two nights from after school Friday until Sunday afternoon, the father wants three.

5. It may be that the Court should consider that the children’s best interests would be served by adopting a conservative approach and considering a two night period, as the mother proposes. It would certainly increase the children’s time with their father. It would allow them to have a large part of the weekend with him, although not as much as he would like. There would still be the changeover period which the parties have agreed would, on the Sunday afternoon if that be the time, involve the children being returned to the mother’s residence. It has not been put to the Court that changeovers have been partly difficult or acrimonious.

6. Sometimes the Court must look at reducing the amount of changeovers, or reducing the likelihood of the parents coming into contact with each other. These parents seem to be able to accommodate changeovers without there being acrimony and difficulty, which, of course, if it were to be the case, would cause the children distress. These parents seem to be able to avoid this, which is to their credit.

7. It would also seem to me that if the weekend arrangements proposed by the mother were to be ordered, then the mother would go along with those arrangements which she had proposed, and see that they worked.

8. There is, however, a proposal by the parties that the father would spend some afternoon to evening time with the children. The father wants to increase that, but the mother thinks that it should not be increased as much as the father would like. At the moment, though, the children, during the school term, whilst not spending overnight time with their father, are spending two afternoons a week with him. I am certainly of the view that the children should spend, as well as weekend time, three afternoons a fortnight with their father. The mother suggests Tuesday afternoons and alternate Thursdays, and I propose to make those orders.

9. The father’s work arrangements are relatively flexible. He has provided an affidavit by Mr M, his superior in his employment, the Managing Director of his employer. It appears that Mr M seems to hold the father in high regard and is certainly prepared to allow the father to be flexible with his time.

10. That gets us to Father’s Day. The mother suggests that Father’s Day arrangements should go from the Friday afternoon before Father’s Day to 5 o’clock on the afternoon of Father’s Day. The father suggests that it should continue until the Monday morning, because basically that is the weekend proposal that each party offers – does the weekend finish at 5 o’clock on the Sunday or does it go over on the Monday with the father sending the children off to school?

11. One issue that I considered and which I discussed with Counsel for the parties, was the fact that the little girl [Z] starts school at the beginning of the first term in 2015. It is well-established, and we discussed this, that commencing school is a milestone in a child’s life and it takes a while for a child to adjust.

12. I would be of the view that it is in this little girl’s best interests for the school term arrangements to be well and truly settled in during this school term and that there should be no major changes to those arrangements, certainly during her first school term next year.

13. Children get tired when they go to school for the first time. They have got to be there all day, every day, five days a week and there is a lot of learning to do, and they are usually fairly weary by the end of the week. This is not an unusual circumstance. I think that virtually every parent in Australia would know that. For that reason, I do not think there should be major changes during the early part of next year because of the effect that this would have on this little girl, which I do not think would be in her best interests.

14. However, as the year progresses and this child is well and truly settled into school, it would seem to me that the parties could give serious consideration to increasing the weekend time. Whilst it may well be premature that the children spend the Sunday night with their father at this stage, by the latter half of next year that may well be a viable proposition.

15. It is for that reason that, with the Father’s Day arrangement, which would be in September, I consider that it would be in the children’s best interests to spend all of Father’s Day with their father and he can organise them to school on the Monday morning.

16. I am also of the belief that the children should spend any public holiday Monday with their father if the Monday following the weekend they spend with him is a public holiday. This will not have a great effect as public holidays in New South Wales do not involve a large number of public holiday Mondays. The Australia Day holiday will be during the school holidays, so that does not come into consideration. Anzac Day next year falls on a Saturday and it does not necessarily follow that there will be a public holiday on the Monday. The later public holidays in the year could well be Mondays, but my view is that be that stage the children would certainly be up to spending the extra odd night with their father.

17. What I propose to do with Father’s Day is to vacate the incomplete Order that was made by consent yesterday and provide a separate Father’s Day order which should be quite clear to the parties as to what the times are.

18. I propose to note in the Orders that the parties still have one agreed time during these holidays where the children will spend time with their father, that is from next Sunday morning until Monday afternoon. There does not appear to me to be any need for a Court Order because the parties have made this arrangement of their own accord and they have kept to it, certainly on the evidence before me.

The Relevant Law in regard to Parenting Applications

1. When the Court is considering making parenting orders, whether final orders or orders until further order, it must have regard to various sections of the Family Law Act 1975 (Cth) that are to be found in Part VII of the Act. In particular, it should have regard to the provisions of:

   a)Section 60B;

   b)Section 60CA;

   c)Section 60CC;

   d)Section 61DA; and

   e)Section 65DAA.

Section 60B of the Family Law Act

1. The Court must have regard to the objects of Part VII of the Act and the principles underlying those objects.

2. The objects of Part VII are set out in subsection 60B(1) and include:

   (a)    ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)    protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

3. These two objects are reflected in subsection 60CC(2) of the Act.

4. The principles underlying the objects are set out s.60B(2) of the Act. These principles include the right of children to know and be cared for by both their parents and the right of children to spend time and communicate on a regular basis with both their parents and other people significant to their care, welfare and development (such as grandparents).

Section 60CA of the Family Law Act

1. Section 60CA requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration. Section 60CC sets out the way that the Court determines what is in a child’s best interests.

Section 60CC of the Family Law Act

1. The primary considerations are set out in subsection 60CC(2) of the Act. They are:

   (a)    the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)    the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. The Court is required by s.60CC(2A) to give greater weight to the consideration set out in paragraph (b).

3. The additional considerations are set out in subsection 60CC(3). They are contained in paragraphs (a) to (m) of the subsection, although they will not all necessarily be relevant.

Section 61DA of the Family Law Act

1. Section 61DA requires the Court to apply the presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child. This presumption does not apply in cases of abuse, neglect or family violence and may be rebutted by evidence that it would not be in the child’s best interests to apply the presumption.

2. Subsection 61DA(3) applies when the Court is making an interim order, and provides that:

   …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 65DAA of the Family Law Act

1. Section 65DAA applies when the Court has made an order that the child’s parents are to have equal shared parental responsibility for the child, If that is the case, the Court must consider whether it is both in the child’s best interests and reasonably practicable for the child to spend equal time with each parent (s.65DAA(1)) or, in the alternative, whether it is both in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent (s.65DAA(2)).

2. All of the above matters have been considered, insofar as they are relevant.

Parental Responsibility

1. Having read and reread the decision of the Full Court of the Family Court in Goode & Goode[3] (a case in which, I note in passing, Counsel appeared for the father appeared) I am of the belief that the Court must look at the presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them. I intend to make that order. I am not satisfied that at this stage it is either in the children’s best interests or reasonably practicable for there to be an equal time arrangement, and I note that neither party sought such an order.

   [3] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

2. The Orders that I propose to make, combined with the Orders which have been made by consent, come reasonably close to substantial and significant time, although they may not allow the father to have as much involvement in the children’s schooling as his Counsel was submitting yesterday. Nevertheless, I am of the belief that these orders will be in the children’s best interests and will allow them to spend a reasonable amount of time with their father, which will certainly be greater than what has occurred up to now.

3. I believe that overnight time, which will become a regular feature, is something that the children will adapt to, and I note the positive comments of the Family Consultant in the Child Dispute Conference Memorandum.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  7 October 2014