Sampson and Baker
[2011] FMCAfam 500
•3 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SAMPSON & BAKER | [2011] FMCAfam 500 |
| FAMILY LAW – Children – parenting orders – interim orders – two children – one child aged 3 years – one child aged under two – parental responsibility – equal shared parental responsibility – whether siblings should be separated – attachment – primary attachment. |
| Family Law Act 1975 (Cth), ss.11C, 11F, 60CA, 60CC, 61DA, 65DAA |
| Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 |
| Applicant: | MS SAMPSON |
| Respondent: | MS BAKER |
| File Number: | SYC 5536 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 9 November 2010, 21 February 2011 |
| Dates of Last Submission: | 9 November 2010, 21 February 2011 |
| Delivered at: | Sydney |
| Delivered on: | 3 June 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Christie |
| Solicitors for the Applicant: | Karras Partners Lawyers |
| Counsel for the Respondent: | Ms Rees SC |
| Solicitors for the Respondent: | Craddock Murray Neumann |
ORDERS
UNTIL FURTHER ORDER
The Applicant and the Respondent are to have equal shared parental responsibility for the children [X] born [in] 2007 and [Y] born [in] 2009.
The Applicant and the Respondent are each to have sole parental responsibility for making decisions about day to day issues concerning the care, welfare and development of the children or either of them when the children are in their care.
The child [X] born [in] 2007 is to live with the Respondent.
The child [Y] born [in] 2009 is to live with the Applicant.
The Applicant is to spend time with [X]:
(a)Each alternate weekend from 5:00 pm on Friday until 5:00 pm on Sunday; and
(b)Each Monday and Wednesday from 8:00 am to 6:00 pm;
(c)From 9:00 am to 1:00 pm on Mother’s Day;
(d)From 9:00 am to 1:00 pm on Christmas Day.
The Respondent is to spend time with [Y]:
(a)On the Saturday of the other weekend being the Saturday when [X] is not spending time with the Applicant from 9:00 am to 5:00 pm until [date omitted] 2011;
(b)
On the Sunday of the other weekend being the
Sunday when [X] is not spending time with the Applicant from 9:00 am to 5:00 pm until [date omitted] 2011;
(c)Each Tuesday and Friday from 8:00 am to 6:00 pm; and
(d)Commencing after 1 August 2011 from 9:00 am on Saturday until 5:00 pm on Sunday being the Saturday and the Sunday when [X] is not spending time with the Applicant;
(e)From 1:00 pm to 5:00 pm on Mother’s day; and
(f)From 1:00 pm to 5:00 pm on Christmas Day.
The Respondent is to responsible for the transport of the children.
Each party must inform each other of any illness or injury suffered by either of the children as soon as is reasonably practicable.
Both parties are restrained by injunction from denigrating or criticising the other in the presence or hearing of the children.
IT IS NOTED that publication of this judgment under the pseudonym Sampson & Baker is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5536 of 2010
| MS SAMPSON |
Applicant
And
| MS BAKER |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for interim parenting Orders. The application concerns two children, [X], who was born [in] 2007 and [Y], who was born [in] 2009.
Orders Sought
By her Application filed on 2nd September 2010, the applicant seeks interim orders to this effect:
a)The parties should have equal shared parental responsibility for [X] and [Y];
b)That they each have sole responsibility for making decisions bout other aspects of the children’s care, welfare and development when the children are in their care;
c)That [X] live with the respondent each alternate weekend from 5:00 pm on Friday until 5:00 pm on Sunday;
d)That [Y] live with the respondent from 9:00 am on Saturday until 5:00 pm on Sunday;
e)That [X] live with the respondent overnight from 5:00 pm on Tuesday until 5:00 pm on Wednesday;
f)That [Y] live with the respondent from 9:00 am until 5:00 pm each Wednesday; and
g)At other times as agreed in writing.
h)The applicant seeks an order that both children live with her at all other times.
The respondent filed a Response on 12th October 2010. In her Response the respondent seeks orders that:
a)The parties should have equal shared parental responsibility for [X] and [Y];
b)That [X] live with the respondent;
c)That [Y] live with the applicant;
d)That the applicant should spend time with [X] in a gradually increasing schedule, with increments at:
i)31st January 2011;
ii)14th March 2011;
iii)17th September 2011; and
iv)1st January 2013, which would include half of each school holiday period.
e)That the respondent spend time with [Y] in a gradually increasing schedule, with increments at:
i)31st January 2011;
ii)31st July 2012; and
iii)1st January 2013, which would include half of each school holiday period.
f)The respondent also seeks orders about Christmas Eve, Christmas Day and Mother’s Day.
Background
The applicant is a [omitted] by profession. She was born [in] 1972. The respondent is a [occupation omitted] who was born [in] 1963.
The parties commenced their relationship in November 2003. They separated on 7th July 2010. There are two children of the relationship, [X], who was born [in] 2007, and [Y], who was born [in] 2009.
During their relationship, the parties decided that they wished to have children together. They agreed that the applicant would donate ova to the respondent, with sperm from an anonymous donor.
The respondent became pregnant in January 2007 and the child [X] was born [in] 2007.
The applicant became pregnant in November 2008 and gave birth to the child [Y] [in] 2009.
The relationship between the parties deteriorated and they separated on 7th July 2010, although they remained living in the one residence until the applicant moved out on 18th October.
There was an altercation between the parties which led to the respondent seeking an apprehended violence order against the applicant on 16th October 2010. A Provisional Apprehended Domestic Violence Order was issued out of [omitted] Local Court and the application was adjourned to 21st October 2010. The application was listed for a defended hearing on 17th November 2010.
The applicant commenced proceedings in this Court on 2nd September 2010 by filing an Application returnable on 25th October. The respondent filed her Response on 12th October 2010.
On 25th October 2010 the parties attended Court. An order was made under s.11F of the Family Law Act 1975 that the parties should attend a Child Dispute Conference with a Family Consultant and they attended the conference that morning.
The Memorandum from the Family Consultant showed that no agreement was reached, although the Family Consultant noted that both parents indicated that they may agree to the children living in an equal time arrangement by the time [Y] attained the age of five years. However, the parenting arrangements until the time the children reached the age of five years (for [Y]) and seven years (for [X]).
The Family Consultant provided this additional information:
· The children have lived together since [Y] was born. They have also lived with both parents until very recently.
· It would appear that Ms Baker was the primary cared for [X] when he was born and that Ms Sampson was the primary carer for [Y] when she was born.
· The children are likely to have an attachment to both parents and it is impossible to say at this stage which child each parent’s attachments are stronger to.
· The parents’ accounts of the parenting relationships differ and so are of little assistance today
· The children’s relationship with one another is a significant issue and one that needs to be given a high priority when deciding the parenting arrangements
· Although it is generally accepted that children of these ages are better suited to an arrangement where they live predominantly with one parent and spend regular and significant time with the other, each child’s situation is different and it may be appropriate in this case for the parents to engage with a child development expert in order to explore various options.[1]
[1] Family Consultant Memorandum to Court 25.10.2010
That same day, the parties, with the assistance of their legal advisers, entered into interim consent orders that provided that:
a)The parties were to have equal shared parental responsibility for the children;
b)That [Y] would live with the respondent and [X] would live with the applicant;
c)That the respondent would be responsible for the transport of the children;
d)
The children would live with the applicant until 6:00 pm on
26th October (the next day);
e)The children would be cared for by their current nanny each week day between 8:00 am and 5:00 pm;
f)The children would live with the applicant from 9:00 am on 30th October until 5:00 pm on 31st October;
g)The children would live with the respondent from 9:00 am on 6th November 5:00 pm on 7th November;
h)The children would spend time with the applicant each Wednesday and Thursday from 5:00 pm to 7:00 pm; and
i)The children would spend time with the respondent each Monday and Friday from 4:00 pm to 6:00 pm.
On 13th January 2011 the applicant filed an Application in a Case, seeking leave to re-open the case and adduce fresh evidence as set out in her accompanying affidavit. The Application was returnable on
21st February 2011 and was granted on that day.
The fresh evidence was that the respondent informed the applicant on 16th November 2010 that she did not wish to proceed with her application for an Apprehended Violence Order. On 17th November 2010, at [omitted] Local Court, the Police Prosecutor informed the Court of the respondent’s wish and the interim Apprehended Violence Order was discharged.
Evidence
The applicant relied on her affidavits of 25th August, 25th October, 8th November 2010 and 12th January 2011. She also relied on the affidavits of:
a)Ms C, affirmed on 24th October 2010; and
b)Ms S (the applicant’s sister) affirmed 25th October 2010.
The respondent relied on her affidavits of 10th and 22nd October 2010.
Issues
The issue between the parties is whether the children the children live together with one party and spend time with the other, as the applicant seeks, or whether each child lives with the parent with whom he or she has the primary attachment, as the respondent asks the Court to order.
It is the applicant’s case that both children should live with her and spend time with the respondent.
Areas of Agreement
The parties agree that they should have equal shared parental responsibility for the two children.
Submissions
Counsel for the applicant, Ms Christie, submitted that although the two children have different birth mothers they have the same biological mother. The children have two legal parents, the applicant and the respondent.
The children were raised as siblings with two legal parents and they should not be separated. It was at all times agreed by the parties that that they should not be separated. It would not be appropriate for an order to be made that they should be substantially raised in different households.
The applicant’s proposal is that which is set out in her application for interim orders. [Y] is too young to be separated for two consecutive nights from her birth mother, the applicant. [X] is older and more able to spend time away from the applicant.
The arrangement proposed by the applicant provides for substantial and significant time and is age appropriate.
Ms Christie submitted that the respondent appeared in her affidavit to be seeking an unusual arrangement. Paragraph [174] of the respondent’s affidavit of 10th October 2010 provides for a split weekend:
Taking into account that I have been [X]’s primary carer and primary attachment figure, and Ms Sampson has been [Y]’s primary care giver and primary attachment figure, and that I understand Ms Sampson will be living with her sister at [suburb omitted] initially after settlement of the sale of the [suburb omitted] property, I propose that in the interim on business days, I deliver [X] to Ms Sampson’s residence at 8am each day and attend at 5pm to collect him, taking him home at 6pm whilst spending some time with [Y]. I then propose both children spend Saturdays with me, and Sundays with Ms Sampson.[2]
[2] Affidavit of Ms Baker 10.10.2010 at paragraph [174]
Childcare is provided by the nanny, by the applicant’s mother or father, or by the applicant.
In 2011, the situation will change. The children are enrolled in a childcare preschool facility ([omitted]). The applicant’s proposed orders would operate through 2011.
Ms Christie submitted that the respondent now seeks a continuation of the orders made by consent on 25th October 2010. Those orders effectively provide a “one each” approach, with [Y] being with the applicant and [X] being with the respondent. The time the children spend with their parents is confined to a couple of hours after work and does not allow the children to experience the day to day routine of each parent’s household. They should be treated like children of other separated parents.
[X] has spent overnight time with the applicant’s parents when the parties were on vacation. When the respondent went to Tasmania on a brief vacation in March 2010 booth children remained with the applicant in Sydney (see respondents’ affidavit of 10th October 2010 at [122] & [123]).
It was further submitted that the applicant’s central contention is that the children should not be separated and that the home in which they spend most of their time should be the applicant’s, but that they should spend significant time with the respondent.
Turning to the factors that the Court must consider under s.60CC of the Act, Ms Christie submitted that there were relevant matters going to capacity and availability, including some uncontested evidence about the respondent’s health. [X] became her sole focus.
[X] has spent time overnight with the applicant and her family. [Y] is too young to spend significant periods away from the applicant. Again, Ms Christie stated that the parties did not want to have “my child/your child” situation.
The respondent works five days a week, but she has flexible hours. The applicant works for four days a week; she does not work on Thursdays.
If the children are to spend appropriate time together, it should be overnight and on weekends. The children should spend time together and time with their parents.
Ms Rees of senior counsel, who appeared for the respondent, submitted that this was not a case where the children both have a primary attachment to the one person. [Y] is primarily attached to the applicant, who is her birth mother. The respondent says that [X] is primarily attached to her. When [X] was born the respondent stayed at home and looked after him for twenty-one months. Therefore, it is clear that he would be primarily attached to the respondent. There was a close relationship between [X] and his mother, to the extent that the applicant felt excluded.
Ms Rees drew the Court’s attention to the memorandum from the Family Consultant saying that it was likely that the respondent was the primary carer for [X] and the applicant was the primary carer for [Y]. She warned that if there was evidence of those primary attachments, the Court should tread carefully before disrupting them. Thus, if [X] is primarily attached to the respondent, than that relationship should not be disrupted.
It was further submitted that there was a need for a proper assessment.
Each child should reside primarily with the parent with whom they are attached. The question is, how should this time be structured? The Family consultant’s memorandum contains the recommendation that the parties should engage with a child development expert. There is a need for expert opinion to assess the children’s attachments.
The Court should not hasten into an arrangement that has the possibility of disrupting the primary attachments.
In reply, Ms Christie submitted for the applicant that the Act does not speak of attachments but relationships. The applicant’s proposal is to see [X] for seven out of fourteen days each fortnight.
The Relevant Law
Section 60CA of the Act provides that, in deciding whether to make a parenting order, the Court must regard the children’s best interests as the paramount consideration. To determine what is in children’s best interests, the Court must consider the primary considerations in s.60CC(2) and the additional considerations in s.60CC(3).
Subsection 60CC(4) of the Act requires the Court to consider the extent to which each of the children’s parents has fulfilled or failed to fulfil their responsibilities as a parent. Further, where the parties have separated, as they have in this case, the Court must have regard to events that have happened and circumstances that have existed since the separation (see s.60CC(4A)).
I have considered all of those matters.
When making a parenting order, the Court is required by subsection 61DA(1) of the act to apply a presumption that is in children’s best interests for their parents to have equal shared parental responsibility for them (see Goode & Goode[3]).
[3] [2006[ FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
In the present case, the parties agree that they should have equal shared parental responsibility for the children.
Where a parenting order provides that children’s parents are to have equal shared parental responsibility for them, the Court is required by subsection 65DAA(1) to consider the practicability of the children spending equal time with each parent and whether it would be in the children’s best interests to do so.
If the Court does not make such an order, subsection 65DAA(20 provides that the Court must consider:
a)Whether spending substantial and significant time with each of their parents would be in the children’s best interests; and
b)Whether it would be reasonably practicable.
I have also considered those matters.
Conclusions
I propose to make an order that the parties should have equal shared parental responsibility for the children. They seek that order in their Application and Response respectively. There is nothing to indicate that it would not be appropriate in the circumstances.[4] I note that there was an allegation of violence that led to an application for an Apprehended Violence Order in the Local Court, but that application did not proceed.
[4] See s.61DA(3)
This is not a case, therefore, where the presumption would not apply under subsection 61DA(2) because of family violence.
The children have two legal parents. The birth certificates of the children, which were filed by the applicant’s solicitor, show that the applicant and the respondent are the mothers of each child. The birth certificate of [Y] states “Birth mother is Ms Sampson”.
[X]’s birth certificate does not state who his birth mother is but it is uncontested that the respondent is his birth mother.
Because the Court proposes to make an interim order that the parties are to have equal shared parental responsibility for the children, the Court must consider whether it is in the children’s best interests and whether it is reasonably practicable.
I am not satisfied that it is in the children’s best interests to spend equal time with each parent. The children are still very young. [X] is three years and seven months old. [Y] is not yet two.
The parties have been in a state of conflict and their communication is poor. These circumstances do not bode well for the sort of cooperative relationship between parents necessary to make an equal time arrangement work well for the children.
The Court must therefore consider whether it is in the children’s best interests and reasonably practicable to spend substantial and significant time with each parent.
The best interests of the children are the paramount consideration.
It appears to be the case that there is a benefit to the children to have a meaningful relationship with each of their parents.
Whilst there has been, as I mentioned earlier, an allegation of violence that led to an application for an Apprehended Violence Order, the respondent elected not to proceed with that application. There still remains a suspicion and a tension between the parties. However, I am not satisfied that there is an unacceptable risk of physical or psychological harm to either child from being subjected to, or exposed to, abuse, neglect or family violence in the care of either parent.
The children are too young for their views to be sought.
The evidence shows that the children have a positive relationship with each of their parents. They also appear to have a good relationship with grandparents and their parents’ siblings. The applicant’s sister Ms S has deposed that she has “a very close relationship” with [X].[5]
Ms Sampson also deposed that:
[Y] is my niece and we also have a very close relationship. [name omitted] and I hosted [Y]’s first birthday party at our home….Prior to Ms Sampson moving in with us, we would generally see [X] and [Y] every weekend or every other weekend, and now that Ms Sampson lives with us, during the week.[6]
[5] Affidavit of Ms S 25.10.2010 at [4]
[6] Ibid at [5]-[6]
Despite the difference in their approaches to parenting arrangements, each of the parties has a willingness and ability to facilitate and encourage a close and continuing relationship between the children and the other parent. It is the extent of the time spent with the other parent that is the issue.
In my view, there has already been a significant effect on the children arising from their parents’ separation and the resulting interim parenting arrangements. What needs to be done is to make orders that will foster the children’s relationship with each other and each mother.
There is little practical difficulty or expense involved in the children spending time with either parent. The parties live in the Eastern Suburbs of Sydney and are reasonably mobile.
Each parent appears on the evidence to have the capacity to provide for the needs of the children, including their emotional and intellectual needs. The applicant appears to have the support of her sister, who lives nearby.
The children are still very young. [X] is a little boy who was born [in] 2007. [Y] is a little girl who was born [in] 2009. Their background is that they are the children of same sex parents and they do not have an identified father.
The parties have positive approaches to the responsibilities of parenthood, but there is a difference between them about parenting arrangements. The applicant is firmly of the view that the children should stay together and refers in her affidavit of 25th August 2010 to an incident at a lunch in late 2008 or early 2009:
We met a lesbian woman there who had a child. She explained to us “when my same sex relationship broke down, I took the child I gave birth to and my ex took the child she had given birth to.’ I recall discussing this with [Ms Baker] when we were driving home from the BBQ. We were both appalled that the children had been split up like that. I recall [Ms Baker] saying words to the effect, ‘We would never do something like that’.[7]
[7] Affidavit of Ms Sampson 25.8.2010 at [5]
However, the respondent is now at the stage where she has a different view. She proposes that once [X] turns three and a half years of age[8] and once [Y] turns three they should start spending overnight time with the other parent. However, she deposes:
I do not consider an arrangement where the children spend an equal amount of nights between Ms Sampson and me will work. I have been subjected to such hostility from Ms Sampson that her level of communication to me is poor. I consider it important that each child remain in the primary care of their primary attachment figure – [X] with me, and [Y] with Ms Sampson. However, I also consider it important that the children spend as much time with one another as is possible and taking into account their ages and stages of development work towards an arrangement where they are both spending a substantial amount of time with each p[aren’t overnight.[9]
[8] He now is 3 years and 7 months
[9] Affidavit of Ms Baker 10.10.2010 at [178]
There was an allegation of family violence in 2010 but there are no ongoing allegations. There is no family violence order in force.
It would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children. These are interim proceedings, and unless the parties reach a resolution of the differences between them, there will be a final hearing. Regrettably, with the Court’s present heavy workload, a hearing date is at least a year away.
In the meantime, the Court will proceed to make orders with the children’s best interests as the paramount consideration.
The parties have only recently separated. There is no evidence of any major change in their lives that needs to be considered.
In my view, the evidence indicates that [X] has a primary attachment to the respondent, his birth mother, and [Y] has a primary attachment to the applicant, who is her birth mother. The young ages of these children, particularly [Y], who is not yet two, indicate that the Court should make interim orders that would enhance those relationships. However, each child has an attachment to the other mother, and there is a need to increase the amount of time that the children spend with that person. The children also have a relationship with each other. They are brother and sister. They need to spend time together.
[X] is old enough to be spending regular overnight time with the applicant. [Y] is not yet two, and is a little young at present, but I would consider that once she reaches her second birthday, which will be on [date omitted], she should be ready to spend overnight time with the respondent.
I note that the children are enrolled to attend child care at [omitted] on Thursdays and Fridays.[10] It is desirable that they attend there together.
[10] Affidavit of Ms Baker 10.10.2010 at [173]
However, at this early stage, Ave should live with the applicant. [X] should live with the respondent. They should spend time with each other frequently.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 3 June 2011
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