Sampson and Baker (No.2)
[2011] FMCAfam 1003
•20 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SAMPSON & BAKER (No.2) | [2011] FMCAfam 1003 |
| FAMILY LAW – Children – interim orders – application to vary interim orders – where application made less than three weeks after interim decision handed down – whether application tantamount to appeal – where Single Expert Report became available prior to interim decision being handed down but was not before the Court – where parties entered into consent orders to vary interim parenting order on the first return date of the application to vary the interim orders – where Applicant seeks a graduated increase in time with child prior to final hearing – where final hearing not to take place for a further eleven months – whether parties entered into a concluded interim settlement – whether Respondent resiled from agreement – costs – whether cost order appropriate. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA, 117 |
| Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 Masters v Cameron (1954) 91 CLR 353 Sampson & Baker [2011] FMCAfam 500 Treloar & Nepean [2009] FamCAFC 206; (2009) FLC 93-417 |
| Applicant: | MS SAMPSON |
| Respondent: | MS BAKER |
| File Number: | SYC 5536 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 1 August 2011 |
| Date of Last Submission: | 18 August 2011 |
| Delivered at: | Sydney |
| Delivered on: | 20 September 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Christie |
| Solicitors for the Applicant: | Karras Partners |
| The Respondent: | In person |
ORDERS
UNTIL FURTHER ORDER:
Order 5 made on 3 June 2011 and varied by consent on 1 August 2011 is varied so as to provide that the Applicant is to spend time with the child [X]:
(a)Each alternate weekend from 5:00 pm on Friday until 5:00 pm on Sunday in Week 1until 31 December 2011;
(b)Each alternate week from 5:00 pm on Thursday until 8:00 am on Friday in Week 2 until 31 December 2011;
(c)
Each Monday and Wednesday from 8:00 am to 6:00 pm until
31 December 2011;
(d)From 9:00 am to 1:00 pm on Christmas Day, Mother’s Day and the child’s birthday;
(e)From and after 1 January 2012, each alternate weekend from 5:00 pm on Friday until 5:00 pm on Sunday; and
(f)From and after 1 January 2012 from 8:00 am on Monday until 5:00 pm on Tuesday of each week.
Order 6 made on 3 June 2011 is varied so as to provide that the Respondent is to spend time with the child [Y]:
(a)Each other weekend being the weekend of Week 2 when [X] is not spending time with the Applicant from 9:00 am on the Saturday until 5:00 pm on the Sunday;
(b)Each Tuesday and Friday from 8:00 am to 6:00 pm;
(c)From 1:00 pm to 5:00 pm on Christmas Day, Mother’s Day and the child’s birthday; and
(d)From and after 1 January 2012 from 9:00 am on the Thursday of Week 1 until 8:00 am on the Friday.
The parties are to do all things necessary to facilitate the attendance of [X] at [R] School on Thursdays and Fridays in each week in 2012 and on one other day each week if a place is available for him.
IT IS NOTED that publication of this judgment under the pseudonym Sampson & Baker (No.2) 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 to vary interim parenting orders that were made on 3rd June 2011 (Sampson & Baker[1]), as the result of a Court Expert Report by Dr M, completed on 11th May 2011. That report had not been before the Court when the earlier application was heard.
[1] [2011] FMCAfam 500
The Application concerns the children [X], who was born [in] 2007, and [Y], who was born [in] 2009. [X] lives with the Respondent and spends time with the Applicant. [Y] lives with the Applicant and spends time with the Respondent.
The Applicant filed an application in a Case on 20th June 2011, seeking a variation of the earlier Orders that set out when she would spend time with [X] and when the Respondent would spend time with [Y]. The bases for the Application, as set out in the applicant’s affidavit of 20 June 2011, are that:
a)Dr M recommended in his Report that the applicant’s time with [X] should gradually increase and the Respondent’s time with [Y] should also gradually increase, bearing in mind [Y]’s tender age;[2]
b)For the month prior to the Orders of 3rd June 2011, the parties had arranged between themselves for [X] to stay with the Applicant for three nights each fortnight and for [Y] to stay with the Respondent for one night per fortnight;[3]
c)The Applicant has been unable to secure agreement from the Respondent since the Orders were made to restore the arrangements to those that the parties had agreed before the orders were made on 3rd June 2011;[4] and
d)Dr M recommended in his report that the parties’ time with each of the children should be gradually increased, but “The current orders do not provide for any increase to take place.”[5]
[2] Affidavit of Ms Sampson 20.6.2011 at paragraph [3]
[3] Ibid at [4]
[4] Ibid
[5] Ibid at [5] but see Order 6(d)
Background
The history of the parties in connection with the litigation has been set out in paragraphs [4] to [17] of the earlier decision.[6] The Orders made on that occasion provide that the Applicant is to spend time with [X]:
a)each alternate weekend from 5:00 pm on Friday until 5:00 pm on Sunday;
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; and
d)From 9:00 am to 1:00 pm on Christmas Day.
[6] [2011] FMCAfam 500 at [4]-[17]
The orders also provide, at (6), that 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 31 July 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 31 July 2011;
c)each Tuesday and Friday from 8:00 am to 6:00 pm;
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 substantive application has been listed for final hearing for four days from 5th to 8th June 2012.
The current orders are set out in full. It can be seen that the Applicant’s affidavit of 20th June 2011 in support of the Application in a Case misrepresents the current orders in two ways:
a)by stating that the Respondent’s time with [Y] had been reduced so that she would spend no overnight time with the child (“…while [Y] had been staying with the Respondent one night per fortnight and now the orders have reduced that to no nights”); and
b)by stating that the orders do not provide for any increase of time with the children (“The current orders do not provide for any increase to take place”).
It can readily be seen that Order 6(d) provides that [Y]’s time with the Respondent would increase to allow the child to spend alternate Saturday nights with the Respondent as from 1st August 2011, coincidentally, the return date of the Application in a Case.
When the Application came before the Court on 1 August 2011, the parties entered into handwritten interim consent orders to vary Orders 5 and 7 as follows:
1. That Order 5 of the Orders made 3 June 2011 be varied as follows:
1.1 The Applicant is to spend time with [X]:
(a) each alternate weekend from 5pm Friday until 5pm Sunday commencing Friday 5 August 2011 and thereafter fortnightly (Week one);
(b) each alternate week from 5pm Thursday until 8am Friday commencing Thursday 11 August 2011, and thereafter fortnightly (Week 2).
2. Order 7 be varied as follows:
(a) Applicant to collect [X] each alternate Friday & return [X] on the following Sunday.
(b) Applicant or her nominee to collect & return [X] should he be in her care by agreement on any Tuesday.
(c) Applicant or her nominee collect [X] on Wednesday morning.
(d) Applicant to collect [X] each alternate Thursday.
The Applicant’s legal advisers would normally be expected to provide the Court with a typescript of any handwritten consent orders but no such document appears on the Court file.
Orders Sought
The Applicant seeks to vacate Orders 5 and 6 made on 3rd June 2011 and institute a graduated program of increased time for each party to spend with the other child from the following dates:
a)18 September 2011; and
b)1 January 2012.
Specifically, the Applicant seeks these Orders:
4. Until 17 September 2011, the Applicant is to spend time with [X]:
(a) each alternative weekend (“Week 1”) from 5:00 pm on Friday until 5:00 pm on Sunday;
(b) each Monday from 8:00 am to 6:00 pm;
(c) each Tuesday from 5:00 pm until Wednesday at 6:00 pm.
5. From 18 September 2011 to 1 January 2012, the Applicant is to spend time with [X]:
(a) each alternative weekend (“Week 1”) from 5:00 pm on Friday until 5:00 pm on Sunday;
(b) each Monday from 8:00 am to 6:00 pm;
(c) in Week 1, each Tuesday from 5:00 pm until Wednesday at 6:00 pm;
(d) in Week 2, each Tuesday from 5:00 pm until Thursday at 6:00 pm.
6. From 1 January 2012, until further order of this Court, the Applicant is to spend time with [X]:
(a) each alternative weekend (“Week 1”) from 5:00 pm on Friday until 5:00 pm on Sunday;
(b) each Monday from 8:00 am to 6:00 pm;
(c) each Tuesday from 5:00 pm until Thursday at 6:00 pm.
7. The Applicant is to spend time with [X] at all other times as are agreed in writing by the parties.
8. Until 31 July 2011, the Respondent is to spend time with [Y]:
(a) on the weekend the alternative from Week 1 (“Week 2”), from 9:00 am on Saturday until 5:00 pm on Sunday;
(b) each Tuesday and Friday from 8:00 am to 6:00 pm.
9. From 1 January 2012 until further order of this Court, the Respondent is to spend time with [Y]:
(a) on the weekend of Week 2, from 9:00 am on Saturday until 5:00 pm on Sunday;
(b) each Monday from 8:00 am to 6:00 pm;
(c) In Week 1, each Thursday from 9:00 am until Friday at 5:00 pm.
10. The Respondent is to spend time with [Y] at all other times as are agreed in writing by the parties.
The Orders sought are somewhat problematic in their drafting, as the Applicant’s proposed Order 8 sets out a scheme for the Respondent to spend time with [Y] “until 31 July 2011” whilst the proposed Order 9 sets out a scheme to commence “from 1 January 2012”. If the existing Order 6 is vacated, which the Applicant seeks, the Respondent would not spend any time at all with [Y] between 1 August and 31 December 2011.
The Applicant’s proposed Order 8 is virtually identical in its terms with the current Order 6 as it applied from 1 August, except that time on Mother’s Day and on Christmas Day have been deleted. A reference to those two special days has been removed from the Applicant’s proposed orders, which is surprising.
The Respondent has filed a Response, in which she affirms the final Orders sought in her earlier Response filed on 12 October 2010 and seeks the following interim order:
That both parties facilitate the attendance of the child [X] at the preparatory school [R] for five days per week commencing Term 1 2012.
Evidence
The Applicant has seen fit to rely on three affidavits, filed on:
a)20 June 2011;
b)1 August 2011; and
c)18 August 2011.
The affidavits consist of 33 paragraphs, 23 paragraphs and 51 paragraphs respectively, together with a considerable number of annexures which include copies of the Applicant’s solicitors’ letters to the Respondent, copies of the Applicant’s solicitor’s notes of a settlement conference, with the text of two pages blacked out, and copies of the Court’s earlier orders.
It is the usual practice of this Court to require that parties file no more than one affidavit by each witness in support of an application for interim orders, not three. There is no necessity to annex copies of Orders made by this Court to affidavits to be used in this Court. The Court has copies of its own Orders; it does not need to have additional copies annexed to affidavits.
The Respondent relied on one affidavit of some 68 paragraphs with some eleven annexures, filed on 12 August 2011. However, knowing that the Court was due to hand down its decision on the morning of Tuesday 20 September, the Respondent chose to file a further affidavit on Friday 16 September 2011, being an affidavit said to be in reply to the Applicant’s affidavit filed on 18 August 2011.
The parties have now chosen to file five affidavits in respect of an interim application. They need to be aware that flooding the Court with unnecessary affidavit material will not assist their case and will sound in costs.
The Court will make directions restricting the number of affidavits filed for the purposes of the final hearing.
Submissions
The Applicant relies on two written outlines of submissions, dated
4 August and 18 August 2011, respectively. The Respondent relies on a written outline of submissions filed on 12 August 2011.
It is the Applicant’s case that the following facts and circumstances warrant revisiting the Orders made by the Court on 3 June 2011:
a)The ages of the children and their stages of development;
b)The receipt of expert evidence recommending graduated increases in the children’s time with each party, consistent with their ages;
c)The desire of the Applicant to take at least six months out of the workforce to care for the children, commencing in October 2011;
d)The time until the final hearing (June 2012); and
e)Recent decreases in the time being spent between [X] and the Applicant.
It was submitted that the expert evidence, being the Report by Dr M, provided that:
a)Each child is attached to each parent;
b)The sibling bond was seen to be significant;
c)The Respondent had resisted greater time between the Applicant and [X];[7]
d)Shared care should be established when the children attend school; and
e)Overnight time for each child should be gradually increased, having regard to the children’s respective ages.
[7] However, the Respondent consented to an Order on 1 August 2011 that the Applicant’s time with [X] would increase to 3 days per fortnight.
It was further submitted that the Court, having made an interim order providing for equal shared parental responsibility, should consider an equal time arrangement or one which provides for substantial time with the children and each parent. Neither party seeks equal time but the Applicant seeks orders that would provide substantial and significant time in an age-appropriate manner.
The Court should consider orders that would allow the children to spend adequate and proper time with each parent and with each other.
The Applicant proposes to take at least six months leave from October 2011, which would allow her to give attention to:
a)the children spending time together;
b)[Y]’s development (speech) needs; and
c)spending time with [X] before he starts school in 2013.
The Applicant has previously taken maternity leave for nine months and had the primary care of [X]. She cared for both children on a full time basis during the day for six weeks in December 2010 and January 2011 while the Respondent worked.[8] She will be caring for [X] for at least three nights a fortnight as a result of the consent orders made on
1 August 2011.
[8] Affidavit of Ms Sampson 20.6.2011 at [17]
The Applicant submits that the parties had reached a concluded settlement on 23 June 2011, from which she claims the Respondent has resiled.
The Respondent submits that the Applicant, by filing a further Application for interim orders following receipt of the Expert Report, within three weeks of the decision being handed down, is in effect seeking to appeal against the Court’s decision. She seeks a continuation of the existing orders, as varied by the Consent Orders entered into on 1 August 2011, together with an Order to cover [X]’s pre-school education at [R].
The Respondent specifically does not consent to an order that [X] either live with or spend time with the Applicant on Tuesdays from 8:00 am to 5:00 pm. She would like the opportunity to care for [X] on that day, depending on her ability to obtain this day off work.
The Respondent specifically denies that the parties reached a concluded settlement on 23 June 2011. She submits that if a settlement had been reached then the consent orders (a draft of which is annexed to the Applicant’s affidavit of 27 July 2011) would have been signed.
Further, the Respondent submits that whilst the Court did not have the benefit of Dr M’s report of 11 May 2011, many of the factors relied upon by the Applicant from that report were taken into account. Those matters were contained in the memorandum from the Family Consultant that was before the Court. The Court took the children’s attachments into account when handing down judgment on 3 June 2011.
The Respondent makes the point that the Applicant did not ask the Court to reopen the evidence to take Dr M’s Report into account when it became available.
The Respondent further submits that:
a)The present Interim Orders should continue until the final hearing, as they are age appropriate and in accordance with the recommendations made by Dr M;
b)An absence from her for more than three nights a fortnight would be highly stressful for [X], based on his reactions to spending a holiday of four days and three nights with the Applicant and [Y] in July 2011;
c)The children spending time together, whilst important, should not be at the expense of the mother/child bond for either mother;
d)The Applicant’s renewed application for additional time with [X] appears to be based on her own needs rather than the child’s best interests;
e)Whilst Dr M stated in his Report that a shared care arrangement (but not necessarily 50/50 shared care) should be established once the children are attending school, the Applicant is trying to “fast track” this process, noting that [X] is not due to start school until 2013;
f)The Applicant’s proposal would mean that [X] would spend six nights and 5 days with the Respondent[9] which would not be age appropriate and is very close to a shared care arrangement; and
g)It is extremely important that [X] should attend pre-school for five days a week from January 2012.
[9] This appears to be a typographical error, as the Applicant’s proposal is that [X] would spend six night a fortnight with her, not with the Respondent
The Respondent, whilst not legally represented for the interim hearing, did obtain legal advice to help her in preparing her affidavit and written submission. She therefore seeks an order for costs in the sum of $4,500.00. The Applicant’s failure to ask that the Court take Dr M’s Report into account earlier has caused the Respondent to incur a liability for legal costs.
The Applicant submits in reply that her Application in a Case cannot be characterised as an “appeal”. It is an interim application following changed circumstances, namely the availability of the expert’s report, not previously before the Court, and “the respondent’s own Response filed 16 August 2011 (in which she seeks orders)”. The availability of uncontested evidence from a jointly engaged expert at an interim hearing is significant (Treloar & Nepean[10]).
[10] [2009] FamCAFC 206; (2009) FLC 93-417
The Applicant submits that her interim application is in keeping with the recommendations of Dr M, where he talks about incremental increases in overnight time for [X] with her, whilst the Respondent’s interim proposal is inconsistent with those recommendations.
The Applicant also submits that the agreement reached on 23 June 2011 was a concluded settlement and all that remained was preparation of a typed version. The case falls squarely within the first limb of settlement agreements referred to in Masters v Cameron[11] at 360, where the parties intend to be immediately bound but want the agreement formally drawn up. Thus, it is submitted, it is a concluded agreement.
[11] (1954) 91 CLR 353
The Applicant agrees that [X] should continue with his current enrolment at [R] and submits that the Court should take the following matters into account:
a)[X] currently attends [R] on Thursday and Friday each week;
b)The Applicant does not agree that there was a joint agreement for [X] to attend [R] full time in 2012;
c)[Y] attends [R] on Thursdays and Fridays;
d)The children do not spend any significant time together on Thursday and Friday, as they are in different classes at [R];
e)The children are effectively “separated siblings”;
f)If the children are not at [R] from Monday to Wednesday they would have the opportunity to spend time together;
g)The Applicant will be available to care for [X] from Monday to Wednesday each week for at least six months;
h)The Applicant will be able to devote herself to the children’s specific developmental needs for that six month period;
i)2012 will be the last opportunity for [X] to spend time during the week with a parent or his sister;
j)The Applicant would not take the children out of pre-school during her six months off if they spent Monday to Wednesday in her care; and
k)The Applicant accepts that it would be appropriate for [X] to attend pre-school for three days each week when she resumes work as neither parent would be available to care for him.
The Applicant submits that it is not possible to conclude on the evidence before the Court that [X]’s needs are best met by attending pre-school full time as opposed to spending time with one of his mothers, his grandparents or his sister.
The Applicant also submits that there is no basis upon which the Court would make a costs order in favour of the Respondent. Her formal position was to resist any change to the orders, even in the light of the expert evidence, and then concede only on the day the matter came to court that at least some increase was appropriate.
The Applicant seeks an order that costs be reserved.
The Relevant Law
In the earlier decision in this matter[12] I set out at [43]-[49] those matters that the Family Law Act 1975 requires the Court to take into account in deciding whether to make a particular parenting order.[13] Again, I have considered all of those matters.
[12] Sampson & Baker [2011] FMCAfam 500
[13] [2011] FMCAfam 500 at [43]-[47]
I have also had regard to the decision of the Full Court of the Family Court in Goode & Goode[14], which relates at [81] and [82] to the conduct of interim proceedings. Their Honours pointed out that in interim proceedings the Court has no ability to test controversial evidence (at [73]) and:
We also acknowledge that, because of the circumscribed nature of the proceedings, the reasons given at an interim hearing may be brief. So too, the filing of lengthy affidavits is unlikely to be helpful where the Court is unable to make findings about disputed facts.[15]
[14] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
[15] (2006) FLC 93-286 at [74]
Conclusions
The best interests of the children are the paramount consideration. The Court determines what is in a child’s best interests by considering the matters in s.60CC, insofar as they are relevant.
In an interim hearing, the Court cannot make findings about disputed matters of fact, as was pointed out in Goode & Goode[16].
[16] supra
The Applicant’s three affidavits contain a plethora of material, almost an overload of information, much of which is of little help to the Court. The Applicant’s affidavit of 17 August 2011 is said to have been prepared to reply to the Respondent’s affidavit affirmed on 12 august 2011. It is of limited value, because the Court is not in a position to make findings of fact about matters that are controversial.
Further, several of the paragraphs of that affidavit do not relate to matters of fact, but are no more than submissions, as witness paragraph [7], which begins “My proposal for increased overnight time with [X] provides for an incremental increase in time…”, and paragraph [13], which begins “I believe that Ms Baker has adopted a deliberate strategy of manufacturing a picture that we are in “high conflict” and attempting to escalate conflicts so that she can avoid shared parenting of our children”.[17]
[17] Affidavit of Ms Sampson 17.8.2011 at [7] and [13]
Affidavits should contain a concise statement of facts and should not be used by a party to make submissions. The Applicant has already filed two written outlines of submissions; the Court does not need submissions in affidavit form as well.
The Applicant, in that same affidavit, quotes from the expert report of Dr M[18] and from subpoenaed material that is not before the Court.[19] Such practices are unnecessary and unhelpful.
[18] Affidavit of Ms Sampson 17.8.2011 at [15]
[19] Ibid at [18], [40] and [41]
It is also unnecessary, in an affidavit in reply, in an application to vary orders made on 3rd June this year, for the Applicant to refer to matters that took place in the second half of 2009[20].
[20] Ibid at [40]-[42]
Practitioners should consider relevance rather than quantity when submitting affidavits for use by the Court in interim parenting applications.
The Respondent has criticised the Application in a Case as being “tantamount to an appeal against his Honour’s decision”. She also submits that:
At the time the interim orders were made, the report of Dr M had been submitted to the Court. At no time did the Applicant seek that the Court should take this report into account prior to handing down judgment”.
The report by Dr M is dated 11 May 2011. The Court file shows that the Court received the Report on 16 May 2011. It was released on
22 May 2011, which was a Sunday, and sent out to the parties the next day. It is regrettable that the Applicant, who now seeks to rely on this Report for the purposes of her Application, did not ask the Court to reopen the proceedings to allow the Report to be taken into account before the decision was handed down on 3 June 2011.
That said, the Report by Dr M would have been of assistance to the Court in making the Orders on 3 June 2011. In Treloar & Nepean[21], to which counsel for the Applicant refers in the Applicant’s submission in reply, the Full Court of the Family Court had this to say at [52]:
The orders made by the Federal Magistrate appear to be inconsistent with the uncontested evidence from the jointly engaged expert. Nor did his Honour explain in his reasons why he was departing from the recommendations.[22]
[21] supra
[22] (2009) FLC 93-417 at [52]
However, the Applicant’s contention that this is an interim application following changed circumstances is not supported by the claim that “the respondent’s own Response filed 16 August 2011 (in which she seeks orders)”[23] in some way justifies an Application in a Case filed on 20 June 2011 and returnable on 1 August 2011.
[23] Outline of Submissions – Applicant in Reply 18.8.2011 at paragraph [2]
The fact is that the best interests of the children are the paramount consideration. The final hearing, due to the Court’s extremely heavy workload, will not commence until 5 June 2012. The very availability of the Single Expert Report, which is uncontested, is a matter that the Court should consider in deciding whether to vary the interim parenting orders to cover the situation between the present time and June next year.
In his Report, Dr M noted that [X] regarded both the Applicant and the Respondent as “key attachment figures with whom he shared a loving relationship.”[24]
[24] Single Expert Report 11.5.2011 at paragraph [51]
Similarly, Dr M reported that:
“[Y] was seen to have a significant positive attachment with each of her mothers.”[25]
[25] Ibid at [52]
Dr M’s recommendations are contained in paragraph 60 of his Report:
· Both parents agreed to pursue mediation as a preferable approach to further litigation. It was however noted that previously this had been problematic given their inability to respect the approach of the mediator/counsellor. It would be of assistance if the mediator/counsellor was granted access to this document.
· The parties must recognise the importance of protecting the children from exposure to conflict. Respectful communication at times other than handover is necessary.
· Each of the children should currently have primary residence with their birth parent.
· Overnight contact for [X] with Ms Sampson should be gradually increased.
· Overnight contact for [Y] with Ms Baker should be gradually increased recognizing her tender age. Prior to the age of 3 it is important for her to maintain primary residence with her primary attachment figure.
· A shared care arrangement with significant and substantive contact (but not necessarily 50/50 shared care) with each parent should be established once the children are attending school.
· It would benefit the children to continue to attend the same school into the future.
· The family members have maintained a single GP to date. It would be beneficial for this arrangement to remain unchanged.
· I would recommend that Ms Baker maintain her therapeutic intervention with her treating psychiatrist, Dr S. It will be important for her to continue both antidepressant medication and psychotherapy at this time.[26]
[26] Single Expert Report at [60]
The above recommendations have been set out in full. Not all of them are necessarily relevant to the Application currently before the Court, but there are several which are clearly relevant.
The children are still very young. [X] is a little boy who was born on [in] 2007. He has just had his fourth birthday. He will commence school in 2013.
[Y] is a little girl who was born [in] 2009. She is therefore two years and two months old.
Dr M recommends that each of the children should currently have primary residence with their birth mother. That is the situation under the current orders and neither party seeks any change to that arrangement.
What is important, in my view, is the recommendation by Dr M that the children, consistent with their ages, should have gradually increased time with the other party. The operative word in Dr M’s recommendations is “gradually” and there is, in my view, some force in the Respondent’s expressed concern that the Applicant is seeking to “fast track” the process towards shared care before [X] starts school in 2013.
Dr M did not recommend equal shared care to be in place by 2013. He referred to a “shared care arrangement with significant and substantive contact (but not necessarily 50/50 shared care) …once the children are attending school”. In my view, this leads to the conclusion that there should be some increase in the time [X] spends with the Applicant before the final hearing in June next year.
The orders sought by the Applicant would mean that, effective immediately until the end of the year, [X] should spend time with her on Friday and Saturday nights in Week 1, on Tuesday night in Week 1, and Tuesday and Wednesday nights in Week 2, plus all day every Monday. Thus, [X] would move from the present arrangement of three nights a fortnight, as provided by the consent orders of 1 August, to five nights a fortnight after less than two months, and then to six nights a fortnight in January.
This does not sound like a gradual progression at all, but a relatively rapid series of changes, heading toward the possibility of equal shared care by June 2013. This appears to me to be too speedy a change and not in accordance with Dr M’s cautious recommendations.
The Respondent has submitted that four nights a fortnight would be more than [X] can cope with at this stage, noting that he was distressed after being away from her on a holiday with the Applicant and [Y] for four days and three nights in July this year.
However, any increase in time would not include three or four nights in a block, but spread over a fortnight. I would be reluctant to make an order at this stage that would see [X] spending more than two successive nights away from the Respondent.
That said, [X] has been assessed by Dr M as regarding the Applicant as a key attachment figure with whom he shares a loving relationship. He is now four years old. By the end of the year, he will be four years and three months old, and in my view it would not be detrimental to his wellbeing to increase the time spent with the Applicant to four nights each fortnight from the beginning of next year. Dr M has recommended a gradual increase in time with each parent, and I propose to follow that recommendation.
Turning to [Y]’s time with the Respondent, it is significant that she is considerably younger than [X]. She is only two years and two months old. Dr M recommended that overnight time for her with the Respondent should be gradually increased “recognizing her tender age”. Dr M pointed out that “Prior to the age of 3 it is important for her to maintain primary residence with her primary attachment figure”.
Under the current Orders, [Y] is to spend one night a fortnight with the Applicant, together with each Tuesday and Friday during the day. The Applicant seeks to increase that time from 1 January 2012 from one night a fortnight to two by providing for [Y] to spend each alternate Thursday night with the Respondent.
By 1 January 2012 [Y] will be nearly two and a half years old. By then she should be able to spend the additional time with the Respondent. I note that Dr M assessed [Y] as having “a significant positive attachment” with both the Applicant and the Respondent. Indeed, he reported that [Y] “screeched with delight” when she saw the Respondent in the waiting room, and “numerous loving, playful interactions” were observed between [Y] and the Respondent. This observation gives confidence that an increase in time with the Respondent by one night a fortnight would be in [Y]’s best interests, especially as she would be spending that time with her brother [X]. They both attend [R] on Thursdays and Fridays, and it appears logical that they should travel together on those occasions.
However, there is another aspect of the Applicant’s draft orders annexed to her Outline of Submissions in Reply that is problematic and appears to be a drafting error.
The Applicant proposes that:
4. From 1 January 2012, until further order of this Court, the Applicant is to spend time with [X]…
(b) Each Monday from 8:00 am to 6:00 pm
However, the Applicant also proposes that:
7. From 1 January 2012, until further order of the Court, the Respondent is to spend time with [Y]…
(b) Each Monday from 8:00 am to 6:00 pm
That is clearly an error. The Applicant cannot seriously be suggesting that the parties should exchange the children every Monday, which is the effect of the two proposed orders when read together. That can hardly be in the children’s best interests.
The current Orders provide that [X] spends the Monday of each week with the Applicant and it would appear logical that [Y] should spend that same day with the Applicant and with her brother [X].
Neither child is at pre-school on Mondays, under the current arrangements.
Neither party seeks a change from the current situation of equal shared parental responsibility, nor do I consider that any change is warranted. The orders that I propose to make will not provide for the children to spend equal time with each parent, as I do not believe that such an arrangement would be in their best interests. However, the orders will go at least some way towards providing for substantial and significant time with each party, consistent with the recommendations of Dr M. Substantial and significant time would, in my view, include Mother’s Day, Christmas Day and each child’s birthday.
The Respondent wants [X] to attend pre-school at [R] for five days a week next year, for the reason that he will start school in 2013. The Applicant opposes that plan, as she will be available to look after him. She believes that [X]’s best interests would be better served by spending time in her care, or the Respondent’s care, or with his grandparents, and in the company of his sister, on those other days of the week. She concedes that when she returns to work after taking her proposed six months off in late 2011 and early 2012 that [X] should attend pre-school for three days a week, as neither parent would have the time available to look after him.
Dr M’s only recommendation on this subject is:
It would benefit the children to continue to attend the same school into the future.
At present, both children attend [R] on Thursdays and Fridays. The difference is that [X] will be starting school in 2013, whilst [Y] will not. It is well accepted, in my view, that attending pre-school is a beneficial experience for most children and provides them with a good introduction to the challenges of attending school. It is difficult to see why it would not be in [X]’s best interests to attend pre-school for three days a week in 2012, to help prepare him to attend infants’ school for five days a week in 2013.
The Applicant claims that the parties entered into an agreement on
23 June 2011 which the Respondent has refused to honour, relying on the decision in Masters v Cameron[27]. The Respondent denies that there was a concluded agreement. The Court is not in a position to test the evidence at an interim hearing and I am not prepared to make a conclusive finding of fact in this situation.
[27] supra
Both parties seek costs, or at least that costs should be reserved. I am not prepared to make an order for costs at this stage. There would need to be submissions on the matters contained in s.117 of the Family Law Act 1975 before I would be prepared to make an order for costs. Both the Applicant and the Respondent will need to persuade the Court that an order for costs is appropriate.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 23rd September 2011
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