Salway and Fegley (No.2)

[2014] FCCA 1452

FEDERAL CIRCUIT COURT OF AUSTRALIA

SALWAY & FEGLEY (No.2) [2014] FCCA 1452

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – best interests of the children – parental responsibility – equal shared parental responsibility – children’s wishes considered – family violence issues – substantial and significant time.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 61DB, 65DAA, 68L

Crimes (Sentencing Procedure) Act 1999 (NSW), s.10

Cases cited:
Salway & Fegley [2014] FCCA 839

Applicant: MS SALWAY

Respondent: MR FEGLEY

File Number: SYC 6044 of 2013

Judgment of: Judge Scarlett

Hearing date: 11 June 2014

Date of Last Submission: 11 June 2014

Delivered at: Sydney

Delivered on: 12 June 2014

REPRESENTATION

Counsel for the Applicant: Ms Messner

Solicitors for the Applicant: Crawford Ryan Lawyers Pty Limited

Counsel for the Respondent: Ms Breeze

Solicitors for the Respondent: H.A. Miedzinski Lawyers

Independent Children's Lawyer: No appearance (due to illness)

Solicitors for the Independent Children's Lawyer: Mahony Family Lawyers

ORDERS

UNTIL FURTHER ORDER

1. All earlier parenting Orders are suspended save and except Order (5)(a) made on 2 April 2014.

2. The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the children [X] born [in] 1999, [Y] born [in] 2002 and [Z] born [in] 2008.

3. The children [X], [Y] and [Z] are to live with the Mother.

4. The children [X], [Y] and [Z] are to spend time with the Father as follows:

   (a)Each alternate weekend during the school term from immediately after school on Thursday to the commencement of school on the Monday, commencing on Thursday 26 June 2014;

   (b)In the off week during the school term from immediately after school on Thursday until the commencement of school on the Friday morning;

   (c)For half of the Winter, Spring and Autumn school holidays in each year as agreed between the parties being the first half of the school holidays in 2014 and all even-numbered years thereafter and the second half in 2015 and all odd-numbered years thereafter;

   (d)For three (3) weeks in the January school holidays commencing on 2 January at 9:00 and concluding at 5:00 pm on 23 January 2015;

   (e)From immediately after school on the Father’s birthday until the commencement of school the following morning;

   (f)From immediately after school on each of the children’s birthdays until the commencement of school the following morning where the child’s birthday falls on a school day and for a period of two (2) hours if the day falls on a day that is not a school day.

5. For the purpose of Order (4)(c) above:

   (a)The school holidays are deemed to commence at 9:00 am on the day immediately after the last day of the school term and are deemed to conclude at 5:00 pm on the day immediately before the children are required to attend school at the commencement of the next school term;

   (b)The mid-point of the school holidays is deemed to be 1:00 pm on the middle Saturday of the school holidays.

6. Each of the parties must ensure that the children travel between their homes with all necessary belongings including sporting clothes and equipment to allow them to participate in their schooling and extracurricular activities.

7. Each of the parties is restrained from denigrating or criticising the other party or any members of the other party’s extended family in the presence or hearing of any of the children or from permitting any third person to do so.

8. Each of the parties is restrained from issuing any further subpoenas to the children’s counsellor and each party must acknowledge that such counselling is therapeutic and not reportable.

9. Each of the parties must do all acts and things as are necessary to contact Mr L within seven (7) days to organise and participate in family therapy for such period of time as Mr L deems necessary and the parties are to pay Mr L’s fees in equal shares.

IT IS NOTED that publication of this judgment under the pseudonym Salway & Fegley (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6044 of 2013

MS SALWAY

Applicant

And

MR FEGLEY

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for further interim parenting Orders. Some interim parenting orders were made on 2^nd April 2014 after a hearing that was adjourned on the application of the Mother because the case that the Father sought to argue was not the case that the Mother had come to Court to meet. I granted the adjournment, having made the observation that:

   It is patently obvious that the matter is not ready for an interim hearing.[1]

   [1] Salway & Fegley [2014] FCCA 839 at [8]

2. I also noted that the Father’s solicitor had previously pressed the Court for an interim hearing when the matter was first before the Court, notwithstanding that the only material filed on behalf of the Father was a Notice of Address for Service and the parties had not attended a Child Dispute Conference.

3. Although the matter was not ready for hearing, I made an order under s.68L of the Family Law Act 1975 (Cth) that the interests of the children should be independently represented by a lawyer. This duly happened and the Independent Children’s Lawyer, Ms Mahony, filed a Notice of Address for Service. The matter was listed for interim hearing on 11^th June 2014.

4. Unfortunately, the Independent Children’s Lawyer became ill at short notice and was unable to attend Court. However, she had previously suggested to the parties some interim orders and had forwarded a Minute of those proposed orders to the parties’ solicitors.   

The Hearing

1. The hearing proceeded by way of submissions from counsel for the Mother and the Father. I made interim orders the following day. Regrettably, due to an illness, I was unable to deliver oral reasons for the Orders and I indicated that I would provide some brief written reasons at an early date.

Submissions

1. Counsel for the Father, Ms Breeze, told the Court that her client had changed his position and adopted the Minutes of Order provided by the Independent Children’s Lawyer.  Those suggested orders are, in summary, that:

   a)The parties should contact Mr L to arrange to participate in family therapy;

   b)The parties should have equal shared parental responsibility for the three children;

   c)The children should live with the Mother;

   d)The children should live with the Father:

   i)Each alternate weekend from after school on Thursday to the commencement of school on Monday;

   ii)Each alternate Thursday from the conclusion of school to 8:00am Saturday or at the commencement of [Z]’s [omitted] game during [sport omitted] seasons; and

   iii)For half of each school holiday period as agreed and, in the absence of agreement, for the first half in even-numbered years and the second half in odd-numbered years.

   e)Each parent shall ensure that the children travel between homes with all their necessary belongings for school and extracurricular activities;

   f)Each parent should be restrained from denigrating the other, the children, or members of the other parent’s extended family; and

   g)Each party should be restrained from issuing any further subpoena to the children’s counsellor and acknowledge that the counselling is therapeutic and non-reportable.

2. Ms Breeze submitted for the Father that the children wanted to spend more time with him. The child [Z] has his [sport omitted] training on Friday nights. A changeover at the Police Station does not work.

3. The child [Y], the older of the two boys, will be playing [sport omitted] until mid-August, and then he will start playing [sport omitted].

4. The parties’ daughter [X] works on Friday nights.  Her place of employment is about two minutes away from the father’s residence. She works part-time in a [omitted].

5. Ms Breeze submitted that the children are “extremely anxious” to spend more time with their father. In March of this year they started spending two nights per fortnight with him; prior to that they were spending no time at all with him.

6. Ms Breeze further submitted that the children should spend half of the December/January school holidays with their father.

7. Counsel for the Mother, Ms Messner, submitted that the orders proposed by the Independent Children’s Lawyer would provide more time for the children with their father. However, there were difficulties with some of the arrangements proposed.

8. The Mother is concerned about the proposal that on the off weekend of the fortnight changeover between the parties would take place at 8:00am on the Saturday or at the commencement of the younger boy [Z]’s [omitted] game on a Saturday morning. Whilst it was conceded that the children loved playing [omitted] and it was an important part of their lives, the children’s [omitted] should not be a deciding factor in making proper arrangements for the children to spend time with their father. The boys are still only young; [Z] is only aged five and [Y] is not yet twelve years of age.

9. It is also a concern of the mother that the conflict between the parents might be exacerbated if they were obliged to meet regularly for a changeover.

10. Ms Messner noted that the Father was not paying child support to the Mother in respect of the children. However, it was conceded that there is no Child Support Assessment in place.

Applications for Parenting Orders

1. Where a Court is asked to make parenting orders, it must have regard to the objects of part VII of the Family Law Act 1975 (Cth), which are set out in s.60B(1), and the principles underlying those objects, which are set out in s.60B(2).

2. Section 60CA of the Act requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child (or children, as the case may be) as the paramount consideration. Section 60CC sets out the way that the Court determines what is in children’s best interests, having regard to the primary considerations in subsection 60CC(2) and the additional considerations in subsection 60CC(3).

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

4. When a Court is making an interim order, as in this case, subsection 61DA(3) 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 the order.

5. It is noteworthy that s.61DB provides that if there is an interim parenting order in relation to a child, when the Court is making a final parenting order it must disregard the allocation of parental responsibility made in the interim order.

6. Section 65DAA applies when the Court has made an order that the children’s parents are to have equal shared parental responsibility for them. In that case, the Court must consider whether it is both in the children’s best interests and reasonably practicable for them to spend equal time with each parent (s.65DAA(1)). If the Court is not of that view, it must consider whether it would be in the children’s best interests and reasonably practicable for them to spend substantial and significant time with each parent (s.65DAA(2)).

7. All of those matters have been considered.

Conclusions

1. It is uncontroversial that the parties should have equal shared parental responsibility for their three children and I will order accordingly.

2. However, whilst it appears clear that the Court should make parenting orders providing for the children to spend time with their father, I am not satisfied that it is necessarily in the children’s best interests or reasonably practicable for them to spend equal time with each parent. There is a considerable conflict between them, which would not be conducive to an equal time arrangement. The very fact that the Court is being asked to adjudicate on changeover arrangements between the parents is a good illustration of this point.

3. It is also uncontroversial that the children should live with the Mother, at least on an interim basis. However, there is some disagreement between them about the time that the children should spend with their father.

4. The resolution of this issue involves a consideration of the matters in subsection 65DAA(2), whether it is both in the children’s best interests and reasonably practicable for them to spend substantial and significant time with each of their parents. Clearly, if they are living with their mother, they are going to be spending substantial and significant time with her.

5. Whether the children should spend substantial and significant time with their father involves an examination of the children’s best interests and the reasonably practicability of the arrangements.

6. There does not appear to be any real difficulty about the practicability of arrangements for the children to spend time with their father. He is living in rented accommodation in one of the southern suburbs of Sydney. The Mother lives with the children in another southern suburb. The Mother deposed in her affidavit of 17^th April 2014 that the two older children are familiar with travel by public transport. They all attend the same school, which is reasonably close to the Father’s current residence.

7. In examining the children’s best interests, the Court must have regard to the primary considerations in s.60CC(2), which are:

   a)the benefit to the children of having a meaningful relationship with both of their parents; and

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

8. The Court must give greater weight to the consideration contained in the second of those paragraphs. It is relevant that there are proceedings before the Local Court of New South Wales at [omitted] in which the Mother is seeking an Apprehended Domestic Violence Order against the Father. According to her affidavit of 17^th April 2014, the proceedings were listed before that Court on 16^th May 2014. There is no evidence of the result of that proceeding.

9. The Mother also deposes that the Father was found guilty of a breach of an Interim Apprehended Domestic Violence Order made on 11^th  December 2013, in which she is named as the Protected Person. According to the Mother’s affidavit[2], the father was placed on a good behaviour bond for a period of 6 months under the provisions of s.10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

   [2] Affidavit of Ms Salway 17.4.2014 at [42]

10. This matter is also relevant for the Court to consider under s.60CC(3)(j) and (k).

11. Notwithstanding the matters referred to above, it appears that the children have a positive relationship with their father. They share an interest in sport of various types. The two boys play [sport omitted], a sport in which their father participated at [omitted] level in the 1990s. 

12. It is submitted that the children wish to spend more time with their father. The orders of 2^nd April 2014 provide that the children should spend time with their each alternate weekend during the school term from 6:00pm on Friday until 6:00pm on Sunday, with the changeover to take place at the [H] Police Station.

13. The orders proposed by the Independent Children’s Lawyer, to which the Father agrees, provide for the children to spend each alternate weekend with the father, from after school Thursday until the commencement of school on the Monday, a block of four nights.

14. The Independent Children’s Lawyer also proposes that the children should time with their father during the off week of the fortnight from after school on Thursday until the following Saturday morning, a further two nights a fortnight. This was not agreed by the Mother.

15. Finally, the Independent Children’s Lawyer proposes that the children should spend half of the school holidays with their father. The Mother did not agree to this proposal.

16. There does not appear to be any clear reason why the children should not spend half of the school holidays, or something approaching half, with their father.

17. Similarly, a four night block of time from after school Thursday until the commencement of school on Monday morning would allow the children to spend substantial time with their father, and it offers the advantage of changeovers taking place at school without the parents having to meet. The avoidance of acrimony between parents at changeover must be in the children’s best interests, as will the removal of a changeover at a Police station.

18. The off-week proposal appears to me to be problematic for two reasons:

    a)The Mother would never have a clear weekend with the children during the school term; and

    b)The changeover on the Saturday morning would be likely to involve the parents coming into contact with each other, which, noting their present degree of conflict, would be undesirable.

19. The children can still spend time with their father on the Thursday afternoon after school and they can go back to school on the Friday morning. After school on the Friday they will go home to their mother.

20. These arrangements will, to my mind, constitute substantial time for the children to spend with their father, being five nights per fortnight during the school term and approximately half of the school holidays.

21. I will also make orders providing for the children to spend time with their father on significant days, being their birthdays and the Father’s birthday.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  8 July 2014