FAMILY COURT OF AUSTRALIA
| SALDOWNE & REITH | [2010] FamCA 169 |
| FAMILY LAW – CHILDREN – With whom a child lives FAMILY LAW – PROPERTY SETTLEMENT |
| APPLICANT: | Ms Saldowne |
| RESPONDENT: | Mr Reith |
| FILE NUMBER: | PAF | 637 | of | 2006 |
| DATE DELIVERED: | 26 February 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Stevenson J |
| HEARING DATE: | 23, 24, 26 November 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kearney |
| SOLICITOR FOR THE APPLICANT: | Meyer Pigdon Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Bell |
| SOLICITOR FOR THE RESPONDENT: | Matthews Folbigg |
Orders
That all existing parenting orders in relation to the children
A born … April 2002 and
L born … July 2003 (‘the children’)
are discharged.
The children will live with the mother at all times other than the periods prescribed in order 3, during which they will live with the father.
The children will live with the father during the following periods:
3.1from the conclusion of school on Friday until the commencement of school on Monday, or Tuesday if this time falls on a long weekend, each alternate weekend during school term time to commence on the first weekend of each school term
3.2each other Wednesday during school term time, from the conclusion of school until 7:00pm
3.3from 5:00pm on Friday until 5:00pm on Monday on the Queen’s Birthday and Labour Day weekends in each year
3.4from 9:00am on 5 April 2010 until 5:00pm on 9 April 2010
3.5from 9:00am on 13 April 2010 until 5:00pm on 17 April 2010
3.6for one half of all school holidays, commencing in July 2010 and being the first half in even-numbered years and the second half in odd-numbered years unless the parents otherwise agree in writing, subject to orders 4 and 5
Unless the parents otherwise agree in writing, the children will spend the following periods with the father:
4.1from 3:00pm on Christmas Eve until 3:00pm on Christmas Day when the children are in the care of the mother for the first half of the Christmas school holidays
4.2from 9:00am on Good Friday until 9:00am on Easter Sunday in 2011 and each alternate year thereafter
4.3for approximately 3 hours on each child’s birthday, being from 9:00am until 12:00noon on a weekend or school holiday or from the conclusion of school until 7:00pm on a school day if the children are in the care of the father on those days
4.4from 9:00am until 5:00pm on Fathers Day if the children are not otherwise in his care on that day.
Unless the parents otherwise agree in writing, the children will spend the following periods with the mother:
5.1from 3:00pm on Christmas Eve until 3:00pm on Christmas Day when the children are in the care of the father for the first half of the Christmas school holidays
5.2from 9:00am on Good Friday until 9:00am on Easter Sunday in 2012 and each alternate year thereafter
5.3from 9:00am until 12:00 noon on each child’s birthday, if those days fall on a weekend or school holiday when the children are in the…
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- Case
- [2010] FamCA 169
- Decision Date
CaseChat Overview and Summary
The court was required to determine the best interests of the children in accordance with section 60CC of the *Family Law Act 1975* (Cth). Specifically, the court had to consider the likely effect of any changes in the children's circumstances, including the impact of separation from either parent, and the practical difficulties and expense of the children spending time with and communicating with each parent. The court also had to assess the willingness and ability of each parent to facilitate a close and continuing relationship between the children and the other parent.
Stevenson J's reasoning was heavily influenced by the expert evidence of Dr M, a psychologist. Dr M expressed strong reservations about a week-about arrangement for A, predicting that he was likely to "decompensate, regress in his behaviour and become oppositional and aggressive" if moved from his mother's home. While Dr M indicated L might cope better with 50:50 care, she doubted L could handle it without A. The court found no expert evidence to support the husband's submission regarding the risk of depression or betrayal, and Dr M's general comments on father attachment and adolescent preferences for a single secure base did not outweigh her specific concerns for A. The court also considered the practical difficulties and expense of communication and contact, noting that the proposed arrangements were designed to facilitate regular contact.
The court discharged all existing parenting orders and made new orders. The children were to live with the mother at all times, except for specific periods when they would live with the father, including alternate weekends, some Wednesdays, public holidays, school holidays, and specific dates in April 2010. The orders also detailed specific arrangements for Christmas, Easter, birthdays, Father's Day, and Mother's Day, with provisions for parental agreement to vary these. The court also made orders restraining the mother from involving the children in further therapy with Ms C and requiring both parents to implement therapy as recommended by Dr M. Finally, the court ordered the husband to pay the wife a sum of $372,400 within three months, upon which the wife would transfer her interest in a property to the husband. The husband was also to indemnify the wife against liabilities related to a debt to his mother and liabilities attaching to the W property.
Orders
Orders of the court
1.
That all existing parenting orders in relation to the children
A born … April 2002 and
L born … July 2003 (‘the children’)
are discharged.
2.
The children will live with the mother at all times other than the periods prescribed in order 3, during which they will live with the father.
3.
The children will live with the father during the following periods:
3.1 from the conclusion of school on Friday until the commencement of school on Monday, or Tuesday if this time falls on a long weekend, each alternate weekend during school term time to commence on the first weekend of each school term
3.2 each other Wednesday during school term time, from the conclusion of school until 7:00pm
3.3 from 5:00pm on Friday until 5:00pm on Monday on the Queen’s Birthday and Labour Day weekends in each year
3.4 from 9:00am on 5 April 2010 until 5:00pm on 9 April 2010
3.5 from 9:00am on 13 April 2010 until 5:00pm on 17 April 2010
3.6 for one half of all school holidays, commencing in July 2010 and being the first half in even-numbered years and the second half in odd-numbered years unless the parents otherwise agree in writing, subject to orders 4 and 5
4.
Unless the parents otherwise agree in writing, the children will spend the following periods with the father:
4.1 from 3:00pm on Christmas Eve until 3:00pm on Christmas Day when the children are in the care of the mother for the first half of the Christmas school holidays
4.2 from 9:00am on Good Friday until 9:00am on Easter Sunday in 2011 and each alternate year thereafter
4.3 for approximately 3 hours on each child’s birthday, being from 9:00am until 12:00noon on a weekend or school holiday or from the conclusion of school until 7:00pm on a school day if the children are in the care of the father on those days
4.4 from 9:00am until 5:00pm on Fathers Day if the children are not otherwise in his care on that day.
5.
Unless the parents otherwise agree in writing, the children will spend the following periods with the mother:
5.1 from 3:00pm on Christmas Eve until 3:00pm on Christmas Day when the children are in the care of the father for the first half of the Christmas school holidays
5.2 from 9:00am on Good Friday until 9:00am on Easter Sunday in 2012 and each alternate year thereafter
5.3 from 9:00am until 12:00 noon on each child’s birthday, if those days fall on a weekend or school holiday when the children are in the father’s care
5.4 from 9:00am until 5:00pm on Mothers Day if the children are in the father’s care on that day.
6.
Unless the parties otherwise agree in writing, they will effect changeovers by:
6.1 the father collecting the children from and returning them to school for the purposes of order 3.1
6.2 the father collecting the children from school and returning them to the mother’s home for the purposes of order 3.2
6.3 the mother delivering the children to the father’s home and the father returning them to the mother’s home at the commencement and conclusion respectively of all periods prescribed in orders 3.3, 3.4, 3.5, 3.6 and 4
6.4 the father delivering the children to the mother’s home and the mother returning them to the father’s home at the commencement and conclusion of all periods prescribed in order 5
7.
7.1 The mother is restrained from involving either child in any further therapy with Ms C.
7.2 The parents will forthwith do all things necessary to arrange for and implement therapy for the children and themselves as recommended by Dr M.
8.
That pursuant to s.65DA(2) and s.62B, 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.
Settlement of Property
9.
Within three (3) calendar months of the date of these orders, the husband will pay to the wife the sum of $372,400.
10.
Simultaneously with and upon payment of the sum of $372,400 by the husband to the wife, both parties will do all things and execute all documents required to effect the transfer to the husband of the whole of the property situate at and known as W property in the State of New South Wales.
11.
The husband will indemnify the wife and keep her indemnified against all liability for the debt to the husband’s mother.
12.
The husband will indemnify the wife against all liabilities of whatsoever nature attaching to the property at W including but not limited to rates, utilities and insurance.
13.
All material produced on subpoena be returned.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
No complaint was raised on behalf of the wife as to the husband’s willingness or ability to encourage a close and continuing relationship between her and the children. I am persuaded that each of the parties is willing and able to facilitate a close and continuing relationship with the children’s other parent.section 60CC(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; In her second report Dr M described in graphic terms the likely impact on A of a change to a week-about arrangement. She said:“The relationship between [A] and his mother is such that if he were to be moved from the mother’s home, except in a crisis situation, such as her extreme physical ill-health, I think [A] is likely to decompensate, regress in his behaviour and become oppositional and aggressive. This should be avoided at all costs.[L] on the other hand would be better able to take this in his stride and he continues to be the child who is likely to do better in 50:50 care with his parents while [A] would be likely to do much worse.” Dr M reinforced these opinions in her oral evidence. I have referred already to her prediction of emotional damage to A as a result of a change to a week-about arrangement. Dr M did not support the introduction of a week-about regime only for L. She said:“I have reservations about whether [L] could handle week-about without [A]”. On behalf of the husband, it was submitted that there should be a week-about arrangement to guard against the risk of depression in the children and “betrayal if [A] forms a view that his mother has impeded his relationship with his father”. There was no expert evidence of any such risks to either A or L. Dr M merely acceded to some general propositions put to her by counsel for the husband. She said:“Historically the importance of attachment to fathers has been understated. With adolescent males, attachment to fathers is a better predictor. They stay attached to mum but want dad to respect them and see them as manly. There is a strong link between depression and father attachment, more so for girls.”She did not link these general considerations to either A or L. Dr M also referred briefly to current academic literature on the impact of children of equal time arrangements. She said: “The latest research shows that once kids get to 12 or 13, they want a secure base, one base.” It is thus my view that nothing in the evidence of Dr M supported the introduction of a week-about arrangement. On the contrary, she expressed a strong opinion that A is likely to suffer psychological damage if such a regime is imposed upon him. As noted, Dr M doubted that L could cope alone with this outcome. I have indicated already that I am satisfied that there was no successful challenge to any of Dr M’s evidence.section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a 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;