Sargent and Selwyn (No.2) - [2017] FCCA 3049

FEDERAL CIRCUIT COURT OF AUSTRALIA

SARGENT & SELWYN (No.2)

[2017] FCCA 3049

Catchwords:
FAMILY LAW – Children – interim hearing – best interest decision.

Legislation:

Family Law Act 1975, ss.60CC, 65DAA

Cases cited:

Sargent & Selwyn [2017] FamCAFC 228

Goode & Goode [2006] FamCA 1346

Banks & Banks [2015] FamCAFC 36

Applicant:

MR SARGENT

Respondent:

MS SELWYN

File Number:

SYC 7405 of 2013

Judgment of:

Judge Baumann

Hearing date:

5 December 2017

Date of Last Submission:

5 December 2017

Delivered at:

Brisbane

Delivered on:

7 December 2017

REPRESENTATION

The Applicant appeared in person

The Respondent appeared in person

ORDERS

That the mother and father have equal shared parental responsibility for the child, [X] born 2012 (“the child”)
That the child shall spend time with the parents for one half of all school holidays in 2017 on a week about basis by agreement between the parents.
That the child spend time with the father from 5.00pm on Christmas Eve until 5.00pm on Christmas Day in 2017.
That the child shall spend time with the parent with whom he is not otherwise spending time in accordance with the holiday time provided for in these Orders from 5.00pm on the day prior to his birthday until 1.00pm on the child’s birthday.
That changeovers that are not scheduled to take place at school will take place at (store omitted) or such other place as the parents may agree.
That each parent must notify the other as soon as is reasonably possible of any illness or injury sustained by the child whilst the child is in his or her care.
That each parent must advise the other of a telephone contact number where he or she may be reached in case of an emergency.
That the parents must ensure that the child is treated by Dr A of Suburb A Medical Centre for any illness or injury except in cases of emergency and advise the other of the name and address of any other doctor who provides medical treatment for the child.
That neither parent is to use any form of physical chastisement or discipline on the child.
That the parents are restrained by injunction from recording any changeover of the child where the child goes from the care of one parent to the other.
That the mother will hold the child’s passport and will release the passport to the father for the purpose of travelling with the child as agreed between the parents from time to time or in accordance with these Orders.
That either parent is permitted to take the child overseas for a holiday and in doing so:
(a)the travel shall be during the period that the child would be with the travelling parent in accordance with these Orders;
(b)the parents will ensure that so far as practicable these occasions are to coincide with school holidays; and
(c)each parent will give the other parent as much notification as possible of their intention to travel overseas with the child, and in any event, will give not less than six (6) weeks’ written notice of such intention.
That the mother have leave to remove the child from the Commonwealth of Australia on 7 December 2017 for one (1) week to undertake a holiday in (country omitted).

THE COURT ORDERS UNTIL FURTHER ORDER:

That the child shall live with the mother.
That the child shall spend time with the father from the commencement of the first day of the child’s school term commencing January 2018 as follows:
(a)In the first week of each fortnight during the school term from immediately after school on Thursday until the commencement of school on the following Monday morning provided that if the Monday is a public holiday then until the commencement of school on the following Tuesday morning; and
(b)In the second week of each fortnight during the school term from immediately after school on Thursday until the commencement of school the following morning.
That these proceedings be adjourned for any further directions at 9.30am on 22 February 2018 before Judge Henderson in the Federal Circuit Court of Australia at Sydney (when it is anticipated the family report ordered on 1 December 2017 will be available).

Trial directions

That these proceedings be set down for final hearing for not more than two (2) days commencing at 10.00am on 12 and 13 April 2018 before Judge Mead in the Federal Circuit Court of Australia at Sydney.
That each party file and serve on each other party no later than 4.00pm on 22 March 2018:
(a)one (1) consolidated affidavit of evidence in chief; and
(b)one (1) affidavit of each witness intended to be relied upon at trial.
That each party file and serve on each other party no later than 4.00pm on 5 April 2018, a case outline setting out:
(a)a precise minute of the final orders sought;
(b)a relevant chronology; and
(c)a list of affidavits and Applications and/or Responses intended to be relied upon at trial.
That no party shall be entitled to rely upon any affidavit material not filed in accordance with these directions without leave of the Court.
That in the event that either party wishes to cross examine the family report writer at the final hearing, that party shall provide written notice to the family report writer of such intention as soon as reasonably practicable, but by no later than 4.00pm on 22 March 2018.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

SYC 7405 of 2013

MR SARGENT

Applicant

And

MS SELWYN

Respondent

REASONS FOR JUDGMENT

Introduction

On 9 November 2017 the Full Court (see Sargent & Selwyn [2017] FamCAFC 228) allowed an appeal against parenting orders made by Judge Scarlett on 29 June 2015 (“the earlier Orders”) in respect of the parents’ child [X] born 2012. The effect of the decision of the Full Court to set aside the earlier Orders is that there are now no parenting orders in existence (save arguably an earlier set of interim orders made by Rees J on 4 March 2014). The Full Court remitted the proceedings for rehearing.
As the Full Court’s decision makes abundantly clear, the delays and process of these parenting proceedings was less than optimal.
As a result, understanding fully the delays in achieving trial dates and family reports in the Sydney Registry, the following steps have been taken:
a)Ms M, the Family Consultant who prepared the only family report in this matter published 13 January 2015 (nearly three years ago), will conduct further interviews and observations on 24 January 2018 and is likely to produce a report within a month thereafter; and
b)Judge Mead will conduct the rehearing of this matter over two days commencing 12/13 April 2018.
By creating these parameters, it has been possible to narrow the issues that must be decided on an interim basis pending a trial listed just four months away, and to the credit of these clearly devoted parents, many of the potential areas of dispute identified at the first directions hearing on Friday, 1 December 2017 before me in Sydney were agreed before the commencement of the interim hearing before me conducted (again perhaps not ideally) by telephone on Tuesday, 5 December 2017. There was a desire to conduct such hearing urgently because the mother and [X] had plans to begin a holiday in (country omitted) for a week today – a trip not opposed now by the father.
It was possible for the interim hearing to be conducted so quickly because the parties, both of whom are not currently represented by lawyers on the record, confirmed to the Court on 1 December 2017, that they had filed the evidence they wished to rely upon, as I will soon detail for the record, and were both anxious and ready to proceed to an interim hearing. With such an early trial having been set, it was certainly arguable that no interim hearing be conducted but rather to leave parenting arrangements to be determined at the hearing when all the evidence can be properly tested and the fresh family report is available. The absence of any orders was seen by me however as problematic.
However, the father’s Application in a Case filed 23 November 2017 for interim orders, which as it has transpired of relevance to the context of this matter, seeks essentially week about equal time interim orders commencing from the start of the New South Wales school holidays and continuing through the start of the new school year commencing January 2018, required determination.
With the issues of the (country omitted) trip; holiday arrangements; Christmas Day arrangements; birthday arrangements for [X] in 2018 and other specific issues orders not being in issue on an interim basis, as the transcript of Tuesday’s hearing reveals, the issue in dispute of real significance is what occurs when school commences in January 2018. As indicated, the father says the child from that time should live with the parents on an equal time basis, with changeover at school on a Friday. In support of this proposal, the father relies upon the Affidavit filed 23 November 2017.
The mother opposes that change, urging that the Orders of Judge Scarlett made 29 June 2015 (and amended 22 July 2016) be effectively reinstated on an interim basis which would mean that during school terms the child would predominantly live with the mother and spend time with the father:
a)each alternate weekend from Friday to Monday extended to Tuesday if Monday was a public holiday; and
b)in the other week the Thursday night overnight until commencement of school on the next day.
In support of this interim order, the mother relies upon her Affidavit filed 27 November 2017. This regime has been in place since the start of preschool in January 2017.
Consistent with the preferred approach identified by the Full Court in Goode & Goode [2006] FamCA 1346 and Banks & Banks [2015] FamCAFC 36 these are the competing proposals – save that during the hearing, the Court raised (as it was perfectly entitled to do) a third alternative, namely:
a)Week one – Thursday after school to Monday before school; and
b)Week two – Thursday overnight.
The essence of this alternate overnight proposal was to slightly increase the time [X] spends with his father, pending the hearing in early April 2018, and to also create a regime where [X] during school terms would spend time with the father every Thursday evening.
Both parties made oral submissions and albeit the mother’s were filed on the Portal on the day of the interim hearing, I am satisfied that the parties’ positions on the now three alternatives were adequately advanced during the oral hearing. I note I have no transcripts of evidence given before Judge Scarlett.
It is to be noted that the written submissions are not evidence. I acknowledge the comprehensive written submissions, but frankly the exercise of discretion that the Court must undertake for the approximate 10 weeks of the first school term of 2018, is indeed narrow but important.
The father’s Affidavit deposes significantly to the process that has transpired since the Orders of Judge Scarlett, but gives little evidence about what has been happening to [X]. I repeat in totality that evidence at paragraphs 8 to 17:
“8.    In July 2015 I purchased a home for [X] and I being Property A. The property is two bedroom/two bathroom, one of each for [X] exclusive use. My home is within 2km of Ms Selwyn.
9. In January 2016 Ms Selwyn and I agreed on Kindergarten Suburb B as the pre-school for [X] and he attended from February 2016 to January 2017. Ms Selwyn and I equally shared the fees for his two ‘designated’ days.
10.    In May 2016 Ms Selwyn and I agreed School 1 as the private primary school for [X]. [X] commenced there in January 2017. Ms Selwyn and I equally share the private school fees and associated expenses. The School 1 is 850 metres from my home.
11.    ‘Enhanced Communication’ Joint Session with our ‘Agreed Psychologist’ was arranged & attended by me. The related email trail with Ms Selwyn at Annexure 3.
12.    I help [X] with reading and arithmetic. I attend Parent teacher nights. In school holidays I organise ‘Playdates’ for [X] and around a dozen of his school friends and families.
13.    I work very flexibly as a (occupation omitted) and in [X]’s time with me he is always in my direct care [save for small errands if we are with his parental grandparents].
14.    [X] has an excellent relationship with his parental grandparents. Often as we leave their home he says ‘I miss Grandpa and Nanna’. In school holidays we mostly stay with them a few days at their house at Town A.
15.    [X] often says ‘I love you Daddy’. I say ‘I love you [X]. He says ‘I love you more’.
16.    Letter enclosing equal time Interim Orders to Ms Selwyn is at Annexure 4.
17.    I request equal time Interim Orders.”
The mother’s Affidavit is also bereft of any substantial evidence about [X] other than how the parents achieved agreements for his kindergarten at School 1 which commenced in February 2017 and her working arrangements as a (occupation omitted) save for paragraphs 19 to 21.
The parties referred in their submissions to the report of Ms M, but as I observed those recommendations (about an equal time arrangement being considered in the future - paragraph 32), was both speculative, but based on views collected nearly three years ago when [X] had not even reached his third birthday. Clearly at the trial in April 2018, when all the evidence then put before the Court can be tested, and the Court has the benefit of a current family report (which is likely to include some understanding of what [X]’s views and feelings are now), the father’s strongly argued desire for equal time will be ventilated. The decision I make on an interim basis does not determine the matter finally and an interim hearing is truncated by process and making findings is potentially difficult, if contested.
What is not in dispute is that [X] is well cared for by both parents, who live close to each other and who are not affected in their parenting by substance abuse or mental illness. They are intelligent, thoughtful and sensitive parents who both want the best for [X]. He is, in every respect, a fortunate little boy to have parents of such quality and resources (including financial resources) to care for him. He is not under loved in any aspect.
The father says that [X] is thriving and the mother agrees. She asserts this is partly attributable to the primary care she has provided to him. Although the father points to the capacity of the parents to reach agreement on some major issues, the mother says that disputes arise and some communication remains difficult. In the first family report, at paragraph 33, Ms M said at that time her assessment of the parties’ communication at that time “remains problematic”.
The father says that is no longer the case. The mother submits otherwise. This is a triable issue, but a very important one because although the Court at the trial, and now, is required to consider an equal time arrangement (s.65DAA) (the parties having agreed to an order for equal shared parental responsibility) the Court must be satisfied before it orders equal time that the arrangements are in the best interests of [X] and also reasonably practicable.
At this stage, both of those elements cannot be definitively determined, in my view, on the scant evidence before the Court – but clearly by April 2018 the Court will be in a position to do so.
On such limited evidence, a thorough examination of the relevant s.60CC(2) and (3) factors is neither possible or necessary, however in a narrative style I make the following remarks.
The parents agree that [X], who already spends significant and substantial time with the father, benefits from having a meaningful relationship with both parents and that there are no issues relevant under s.60CC(2)(b) that are of concern.
There is no independent evidence of any wishes or findings of the child about the differing proposals, but there might be when the fresh family report is prepared.
The parents each have a strong and loving relationship with [X]. The father says [X] has regular time with and enjoys his interaction with the father’s extended family.
The parents have taken opportunities to participate in decision making and financially meet his needs and maintain him.
The parents’ capacity and attitude to parenting is not criticised by the other parent and there are no family violence allegations or orders in place. Any interim orders will be in place for a relatively short period of time and hopefully will be sufficient to avoid any necessity for any further applications before the hearing.
The core issue, identified by the additional considerations under s.60CC(3) is the likely effect upon [X] of any change.
The mother contends a change to equal time during school terms will be both a significant change and contrary to his best interests, where she says he is thriving and has stability with the current arrangements.
The father says that because the child is thriving, the Court should have every confidence he will cope with a change to equal time. He will have experienced equal time during the end of term four 2017 school holidays, which the father opines are sure to go well. The father also points to the benefit to the child of reducing the number of changeovers from four per fortnight to only two per fortnight. Whilst these are well made arguments, which I have considered, it is difficult on an interim basis with limited evidence (and no independent evidence) to so early reject the mother’s concerns in total.
I should mention that to the extent both parties, at different times, assert that during the cross examination of Ms M (the report writer) in the earlier trial, she changed some of her views as contained in the family report – without any transcript or context, I am unable to merely accept those submissions.
The updated report by Ms M which I have ordered to be produced, will no doubt build on the earlier observations but her opinions and any recommendations now might be quite different.

Conclusion

The father properly points to the week about arrangement that will take place over the current school holidays as a basis for continuing the arrangement from the commencement of the next school year. Certainly at the hearing in April 2018, the Court will have evidence from both parties as to how [X] coped with the arrangement.
However, school holidays offer a very different dynamic in a household from that which exists during a school week. Greater communication between parents about issues like school events, homework, sleepovers and extra-curricular activities (for example) arise. Parental communication is tested more during school weeks than during holidays.
The effect of a change to [X]’s regime is uncertain. It is a matter for trial.
However, although at this stage I accept the mother’s submission that her opposition to equal time during school terms is based on her concern as to how [X] will cope with such a significant change, I am satisfied it is in [X]’s best interests to slightly increase the time he spends with his father, by one night a fortnight in accordance with the alternate regime proposed by the Court. I regard such change as reasonably practicable.
The father will have every opportunity at the trial to contend for the equal time arrangement he has consistently urged upon the Court and if the Court assesses, on all the evidence, properly tested that it is in [X]’s best interests and reasonably practicable, then it will be ordered. I will direct the parties appear before Judge Henderson at 9.30am on 22 February 2018 after the family report is available to see whether final orders can be agreed – thereby avoiding the costs and uncertainties associated with any hearing.
However I am not satisfied it is appropriate, for the reasons given and on the limited evidence available, to leap to equal time during school weeks in one step from the current school term arrangements, but do believe an incremental increase after over 12 months of successful parenting under the current arrangements, is in the child’s best interests.

I make the orders pronounced today.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Baumann

Date: 7 December 2017