Safford and Nance
[2010] FMCAfam 1031
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SAFFORD & NANCE | [2010] FMCAfam 1031 |
| FAMILY LAW – Parenting – interview – whether parenting plan still operable – father seeking children to spend time during his rostered days off. |
| Family Law Act 1975, ss.60CA, 60CC |
| Goode & Goode [2006] FLC 93-286 |
| Applicant: | MR SAFFORD |
| Respondent: | MS NANCE |
| File Number: | SYC 2934 of 2010 |
| Judgment of: | Monahan FM |
| Hearing date: | 1 July 2010 |
| Date of Last Submission: | 1 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 1 July 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Batey as amicus |
| Solicitors for the Applicant: | Not applicable |
| Counsel for the Respondent: | Mr Siggins |
| Solicitors for the Respondent: | Mason Mia & Associates |
ORDERS
All extant applications be adjourned to this Court on 22 July 2010 at 2.15pm for mention (“the mention hearing”).
Pursuant to s.68L(2) of the Family Law Act1975, [X] born [in] 2000, [Y] born [in] 2004 and [Z] born [in] 2006 (“the children”) be independently represented AND IT IS REQUESTED that New South Wales Legal Aid arrange such separate representation and:
(a)Forthwith upon appointment by the said New South Wales Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service;
(b)Within 48 hours of notification of such appointment the solicitors for the respective parties do provide to the Independent Children’s Lawyer copies of all relevant documents relied upon; and
(c)The Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
The parties have equal shared parental responsibility for the children.
The children live with the mother.
The children spend time with the father as agreed between the parties and in addition:
(a)from 10.00 am 4 July 2010 until 7.00 pm 6 July 2010;
(b)from 10.00 am 12 July 2010 until 7.00 pm 14 July 2010; and
(c)
from after school (or 3.30 pm) 23 July 2010 until 7.00 pm
24 July 2010.
In relation to paragraph 3 herein, all changeovers will occur at a place as agreed between the parties and in default the mother shall deliver the children to the father’s residence at the commencement of all spend time periods and the father shall return the children to the mother’s residence at the conclusion of all spend time periods.
When the children are living with the mother the children communicate with the father by telephone at such times as agreed between the parties and in default the father nominate two evenings per week for this communication time to occur for a maximum 30 time minute period between 5.00 pm and 7.00 pm.
Similarly, when the children are spending time with the father for more than one night, the children communicate with the mother by telephone at such times as agreed between the parties and in default the children communicate with their mother every second night with the mother to nominate a maximum 30 minute time period between 5.00 pm and 7.00 pm for this communication time to occur.
To facilitate paragraphs 5 and 6 herein, each party provide the other with their nominated communication times in writing within 48 hours of the date of these orders and thereafter if either party wishes to change their nominated times they shall provide the other party with at least 7 days written notice.
The mother forthwith purchase a book to be used for essential communication between the parties about the children’s needs, including but not limited to information about their extra-curricular activities, with the book be exchanged between the parties or carried by the children each time the children move from the care of one party to the other.
Each party be permitted to attend at all extra-curricular activities engaged in by the children and all school events and activities which parents ordinarily are invited to attend.
Each party notify the other party of any change to his or her residential address and/or telephone contact details within 48 hours of such change taking place.
Each party notify the other party as soon as practicable for any serious illness, injury or medical emergency in respect of the children.
Neither party denigrate the other in the presence or within the hearing of the children or permit any other person to do so.
Where used in these orders, “writing” shall be taken to include telephone text messages and emails.
THE COURT NOTES THAT:
(A)The purpose of the mention hearing is to consider the preliminary views of the Independent Children’s Lawyer and more specifically to consider the Notice of Objection – Subpoena filed by the Property Officer, NSW Police Department Subpoena Unit on 22 June 2010 (in relation to the Respondent’s Subpoena to Produce filed 16 June 2010), further interim parenting orders, whether the matter may benefit from a family report and whether the matter should be set down for final hearing.
(B)Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 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 Safford & Nance is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2934 of 2010
| MR SAFFORD |
Applicant
And
| MS NANCE |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by MR SAFFORD (“the father”), who is seeking various property orders in addition to parenting orders in relation to the children: [X], born [in] 2000; [Y], born [in] 2004; and [Z], born [in] 2006 (“[X]”, “[Y]” and “[Z]” or “the children” collectively).
More specifically, in relation to parenting matters, the father is seeking orders to the following effect on both an interim and final basis:
·equal shared parental responsibility for the children;
·that the children live with him for two consecutive days per week, extending to a third day if he has a rostered day off and for half of the school holidays and special days;
·he is seeking a restraint on the children changing schools, or those two that are at school; and
·a restraint on the parties relocating more than 50 kilometres from each other.
The father’s application is supported by his affidavit sworn on 24 April 2010 and filed on 12 May 2010 (“his first affidavit”), and his affidavit sworn on 22 June 2010 and filed on 23 June 2010 (“his second affidavit”). The father also relies on an affidavit from his partner, Ms P, sworn and filed today. He is self represented however he had the assistance of Mr Batey of counsel today.
The respondent is MS NANCE (“the mother”) who, in her Response filed on 15 June 2010, opposes the orders sought by the applicant or by the father and is seeking different property orders and parenting orders in relation to the children. More specifically, in relation to parenting matters, she is seeking final and interim orders to the following effect:
·equal shared parental responsibility for the children;
·the children to live with her;
·the children to spend time and communicate with the father each week from Thursday morning until Friday evening, extending once a month until Sunday evening; and
·part of the school term and long summer school holidays and special days.
She is also seeking orders that the father be available to care for the children whilst they are in his care and also permission to relocate with the children to the [B] area.
The mother relies on her affidavit sworn on 11 June 2010 and filed on 15 June 2010 and she is represented by Mr Siggins today.
Background
The parties agree that they began a relationship in November 1995 but disagree significantly on when they commenced cohabitation. The father asserts it was on 26 November 1995 and the mother asserts it was in December 1999. They agree that they separated in April 2009, but disagree on whether it was 1 April, asserted by the mother, or
4 April, as asserted by the father. Nevertheless, as stated, there are three children of the relationship: [X], now 10; [Y], now six; and [Z], who turns four shortly.
There are no previous or current parenting orders in relation to the children, although the parties did enter into what I will describe as a parenting plan with the [B] Family Relationship Centre on 22 October last year which is discussed further below.
The husband is a [occupation omitted] and asserts he works on a
76 hour per fortnight roster in a six week period.
It is clear that the mother has been the primary carer of the three children on the evidence before the Court. In addition to home duties, she is currently employed as a [omitted] and is apparently also a student.
The father has re-partnered and now lives with Ms P at her home in [L]. Ms P has four children: [names omitted]. Mr Batey submitted that Ms P has a large house comprising six bedrooms, where the children [Y] and [Z] share a room and [X] has her own room when they spend time with the father.
The mother has not, it appears, re-partnered since separation.
Parenting plan
As stated, the parties entered into a document entitled “Memorandum of Family Dispute Resolution” at the [B] Family Relationship Centre on 22 October 2009 (“the parenting plan”). In that parenting plan, the parties agreed that each should have parental responsibility for the children. As to communication, they agreed as follows:
“2.1 We agree to communicate respectfully.
2.2[Ms Nance] agrees to advise [Mr Safford] about school events, emergencies and significant events concerning the children by SMS text in a timely manner.
2.3[Mr Safford] and [Ms Nance] agree to not use the children as messengers.
2.4.Depending on where the children are spending time, [Mr Safford] and [Ms Nance] agree that the non-residential parent will ring the child between 7:30am and 8:30am and between 6:00pm and 8:00pm. [Mr Safford] requests that [Ms Nance] encourage the children to be in a quiet place when talking to him.”
As to the living arrangements, they state:
“3.1[Ms Nance] and [Mr Safford] agree that the children will live with [Ms Nance].
3.2[Mr Safford] and [Ms Nance] agree that the children will spend time with [Mr Safford] as arranged between them. [Mr Safford] agrees to supply [Ms Nance] with his roster in a timely manner so these arrangements can be made.
3.3On parents’ birthdays, the children will spend time with the celebrating parent.
3.4For Christmas 2009, [Mr Safford] will pick up the children on 23 December and deliver them back to [Ms Nance] on Christmas Eve night. [Mr Safford] will pick the children up on Christmas Day on his way to [B] and deliver them back to [Ms Nance] late afternoon on Christmas Day.”
As to changeover, they state in paragraph 4.1:
“[Ms Nance] and [Mr Safford] agree that [Ms Nance] will drop the children at [Mr Safford]’s and [Mr Safford] will deliver them back to [Ms Nance] or vice versa by arrangement.”
In addition, there are two additional paragraphs that are relevant to this matter, namely 5.1:
“[Mr Safford] and [Ms Nance] agree that the children will be supervised by an adult at all times whether at home or in a public place.”
and 5.2:
“[Ms Nance] and [Mr Safford] agree that they will return to the [B] Family Relationship Centre in late January or early February 2010 to review this agreement.”
In respect of paragraph 5.2, I understand that the parties did not return to the [B] Family Relationship Centre to review the agreement.
Child dispute conference
The matter came before me in my duty list last week and on that occasion I made orders, including an order under section 11F of the Family Law Act1975 (“the Act”), for the parties to attend with a family consultant for a trial dispute conference. The parties did so attend yesterday afternoon and a memorandum from family consultant, Ms M, dated 30 June 2010, was received by the parties today.
In that memorandum, Ms M states that the parties have no disagreement at this stage about parental responsibility or live with arrangements, but were unable to agree in respect of spend time and communication arrangements. She states under the heading ‘Summary of Agreements Reached’:
“The parties appear to be in agreement about the arrangements for special occasions. They also agreed about giving one another the first option to care for the children.’
Under the heading Issues ‘Remaining in Dispute’, she states:
“a)The time that the children should spend with their father which, in part, revolves around the issue of how much control, if any, the father has over his roster. The mother says that she believes that he is able to guarantee one consistent day off a week. The father says that he can only do this if he applies to be part time, which he says would have a significant impact on his earning capacity (which the mother disputes).
b)Whether the mother’s current proposal for the children to spend time with their father is likely to meet their emotional/attachment needs in relation to him and whether the father’s proposal creates too much instability for the children.”
Under the heading ‘Issues Impeding Resolution’, she states:
“a)The problems created by the father working in a roster system.
b)The parents differing views as to what is in the children’s best interests, vis-à-vis the balance of sufficient time with their father and the level of predictability.
c)The difficulties in the parental relationship which have been exacerbated by legal proceedings.
d)Problems in communication between the parents.”
Under the heading ‘Recommendations’, Ms M simply recommends that a family report be completed.
The issues
The issues today focus on three areas:
a)whether the matter may benefit from the appointment of an independent children's lawyer (“ICL”);
b)the objection by the New South Wales Police, filed on 22 June 2010, to the subpoena directed to them on behalf of the mother, filed 16 June 2010; and
c)the interim parenting arrangements involving the children spending time with their father between now and the time the matter returns to Court.
This morning I indicated to the parties that having read the material filed, I had formed the view that the matter would benefit from the appointment of an ICL. Although Mr Batey, for the father, quite rightly pointed out to the Court the possible cost implications that could cause the parties, in particular, the father, Mr Siggins, for the mother, agreed that the matter would benefit from the appointment of an ICL.
In light of that foreshadowed order, I adjourned the objection to the subpoena that had been listed in any event to 22 July 2010 at 2:15pm so that I may have the benefit of the input of the ICL in relation to that subpoena objection. I then agreed to entertain an interim hearing in relation to parenting matters only for the period between now and 22 July 2010.
Agreed and disagreed facts
The parties are in agreement that they entered into a parenting plan last year, although they disagree on its current enforceability. The father asserts that the current arrangements remain in force so to speak, and the mother asserts that the arrangements lapsed when the parties failed to review the plan earlier this year. They appear to agree that the spend time arrangements to date, since separation, have been guided, for want of a better word, by the husband’s work roster.
The mother asserts, however, that there have been occasions when she has only been provided with minimal notice about the roster or that the father has failed to make himself available on days when he has been rostered off. They also disagree on the father’s ability to obtain a more certain and long-term work schedule from the New South Wales Police.
The parties also disagree on whether the father’s mental health is a factor relevant to these proceedings, although it is clear that the father has been spending unsupervised time with the children and there is no allegation that the children are unsafe in his care.
There is also a disagreement with respect to the potential relocation by the wife to [B], although this was not relevant to the issues before me today.
Parties’ submissions
As previously stated, Mr Batey submits there is a parenting plan in existence between the parties and, consequently, an agreement for the child to spend time with the father at times that he is available given his work schedule. This is disputed by Mr Siggins. Mr Batey tendered, without objection, a document outlining the father’s work schedule for July and that was admitted into evidence and marked exhibit “AF1” today.
As indicated inter alia, the father is seeking to spend time with the children from Sunday 4 July through to Tuesday 6 July, and from Monday 12 July until Wednesday 14 July. I note that he also seeks to spend time between Thursday 22 July and Saturday 24 July. Mr Siggins submitted that the mother was agreeable to the requested periods during the school holidays, that is 4 to 7 July and 12 to 14 July.
However Mr Siggins also submitted that the roster has been historically supplied to the mother in an “ad hoc” fashion and that there have been times when the father has not complied with his own requests, including his request for time between 30 June and 1 July, although I will note that the parties were, indeed, in this Court yesterday for the child dispute conference and are clearly in the Court again today.
As previously stated, the mother submits that the parenting plan is spent and that she does have concerns about the father’s mental health and, consequently, there have been periods when the father’s time has been supervised in the past. She also has concerns in relation to the fact that she has little or no details about the husband’s current residential circumstances which, I note, Mr Batey subsequently supplied to the Court in his submissions.
Law
The Full Court of the Family Court decision of Goode & Goode [2006] FLC 93-286 (“Goode”) guides the Court approach in making interim decisions and interim orders in relation to parenting disputes. At paragraph 81, the Full Court noted:
“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.”
This matter is such a case. More specifically, this raises the reality that the Court can not fully determine issues of credit today, as the evidence being presented by the parties has not been tested by cross-examination. That having been said, again in paragraph 81 in the Goode decision the Full Court went on to say:
“However, the legislative pathway must be followed.”
In other words, the relevant provisions of the Act after the 2006 shared parenting amendments, must be followed in an interim hearing.
There is, it appears, considerable animosity between the parties in this case and, no doubt, the history of the matter will be the subject of evidence and cross-examined at a final hearing should it be needed.
More positively, there is no issue of equal shared parental responsibility to determine today. Indeed, the parties agreed on such an outcome. The dispute today is simply limited to the issue of the children’s time with their father and under what circumstances that time will be spent.
The Full Court, at paragraph 82 of the Goode decision sets out the approach that this Court must take in determining interim cases. The starting point is clearly to identify the competing proposals, identify the issues in dispute and identify any agreed or uncontested facts before applying the structured discretion and I have previously noted these this afternoon.
At this point, let me note s.60CA of the Act states:
“In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount concern.”
To determine the child’s best interests the Court must consider the primary considerations or factors set out in section 60CC, subsection (2) of the Act and, where relevant, the additional considerations in 60CC, subsection (3), and I will just make some brief comments about those now.
Primary considerations: section 60CC(2)
As to the primary considerations, section 60CC(2), the Court is required under paragraph (a) to consider:
“The benefit of the child having…a meaningful relationship with both their parents.”
At this point, let me note that meaningful does not mean equal, but clearly it signifies that both parties should be involved with their children and consequently 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 enunciated under the Act. Consequently, the Court will, in all likelihood, need to give some considerable weight to this factor at the final hearing, should such be needed.
Secondly, the Court is required under section 60CC(2)(b) to consider the need to protect the child, or children in this case, from physical or psychological harm and being subjected to or exposed to abuse, neglect or family violence.
There is no doubt that it would be in the children’s best interests to develop a meaningful relationship not just with their mother but with their father. That needs to be balanced in respect of protecting the children from any physical or psychological harm and the like. There are issues here warranting investigation and the Court needs to tread cautiously in the interim arrangements that will be necessary, particularly given the family consultant’s recommendation of the need for a family report and my foreshadowed view that the matter needed an ICL.
Additional considerations: section 60CC(3)
With respect to the additional considerations under subsection (3),
I will simply state that these are issues that will be fleshed out in the fullness of time and a final hearing. The family report as recommended by the family consultant in her recent memorandum and the submissions of the ICL once onboard will be crucial to the Court reaching a decision, which will finally determine these matters for the parties.
As to issues such as the “willingness to facilitate a close and continuing relationship” and the “capacity of the parents”, these are also issues that will need to be determined at the final hearing of the matter. As to the “likely effect of any changes in the children’s circumstances”, the Court has formed the view that there needs to be some changes or articulation of the time to be spent between the father and the children at the earliest opportunity.
Conclusion
Having considered the evidence and submissions in light of the structured discretion of the Act, I am satisfied as to the following:
·The matter would be benefited by the appointment of an ICL.
·The father should spend time with the children as he requests, that is from the 4 to 6 July 2010 and from 12 to 14 July 2010, noting that this request was not opposed by the mother. I will also extend that time to 23 and 24 July 2010, noting that the matter returns to Court on 22 July 2010 thus creating difficulties for the father’s request for that same day.
The parties have agreed on equal shared parental responsibility appears to have no issue about the children living with the mother. Consequently, orders to that effect will be made today.
There appears to be issues about telephone contact and the passing of messages between the parties. Consequently, I am satisfied that there needs to be orders today to facilitate a better outcome for the children. This outcome will manifest itself in orders requiring the parties to use a communication book until further order, for communications to be limited to issues affecting the child or issues about the children spending time with the father and the like.
In relation to telephone communication the children should be able to communicate with their father by telephone whilst they are in their mother’s care and similarly, the children should be able to communicate with their mother whilst they are spending time with their father. Failing agreement between the parties in respect of telephone time, the default position will be as follows:
a)the father can nominate a half hour period two evenings per week between the hours of 5:00pm and 7:00pm; and
b)the children can ring their mother on the second night they are in the father’s care at a time as agreed and failing agreement, for a maximum half hour period nominated by the mother, between 5:00pm and 7:00pm.
Changeovers will continue as they have been in the past, with the mother delivering the children to the father’s residence and the father delivering the children or returning the children to the mother’s residence.
As indicated, I am also satisfied that there should be orders today for a communication book.
There will also be an order today that makes it clear that both parents are entitled to attend extracurricular activities and such involving the children.
I am also satisfied there needs to be an order today that puts an obligation on both parents to immediately notify the other of any change of address or residential circumstances.
I am also satisfied today that the children would benefit from the parents being subject to a non-denigration order.
There will be orders of the Court to reflect this decision and I reserve the right to settle the reasons for this interim decision.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 20 October 2010
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