SEEVER & SUTOR

[2015] FCCA 3500

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEEVER & SUTOR [2015] FCCA 3500

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – best interests of the children – parental responsibility – equal shared parental responsibility – equal time – substantial and significant time – children aged 5 years and 3 years – children’s schooling – where elder child due to commence school in 2016.

PRACTICE AND PROCEDURE – Orders – consent orders – previous consent parenting orders incorporated into current parenting orders – where obvious error discovered in previous consent orders – slip rule applied.

Legislation:

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

Cases cited:
Re G:Children’s Schooling [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Sutor & Seever [2014] FamCA 1112

Applicant: MS SEEVER

Respondent: MR SUTOR

File Number: SYC 2712 of 2014

Judgment of: Judge Scarlett

Hearing date: 21 October 2015

Date of Last Submission: 26 October 2015

Delivered at: Sydney

Delivered on: 21 December 2015

REPRESENTATION

Solicitor for the Applicant: Ms McMahon

Solicitors for the Applicant: Turner Freeman Lawyers

Solicitor for the Respondent: Ms Moy

Solicitors for the Respondent: Jo-Anna F.S. Moy

ORDERS

UNTIL FURTHER ORDER

1. Orders 1, 2, 3, 4, 5, 6 and 7 made by consent on 21 October 2015 are discharged.

2. Order 8 to 14 inclusive made by consent on 21 October 2015 remain in force.

3. The parties are to have equal shared parental responsibility for the long term care, welfare and development of the children X born (omitted) 2010 and Y born (omitted) 2012.

4. By Consent, the Mother and Father are to have sole parental responsibility in relation to the children X and Y when in their respective care.

5. The children X and Y are to live with the Applicant Mother.

6. The children X and Y are to spend time with the Respondent Father as follows:

   (a)During the school term:

   (i)From 4:00pm on each alternate Sunday until 4:00pm on the following Tuesday; and

   (ii)From 4:00pm on Friday until 4:00pm on the following Sunday;

   (b)During the Christmas/January school holiday period:

   (i)From 9:00am on Monday 4 January 2016 until 9:00am on Monday 11 January 2016; and

   (ii)From 9:00am on Monday 18 January until 9:00am on Australia Day 26 January 2016; and

   (iii)From 9:00am on Monday 2 January 2017 until 9:00am on Monday 9 January 2017; and

   (iv)From 9:00am on Monday 16 January to 9:00am on Monday 23 January 2017.  

   (c)For the first half of the Autumn, Winter and Spring school holiday periods in 2016 and each even numbered year thereafter commencing at 9:00am on the Saturday immediately after the last day of the school term and concluding at 9:00am on the middle Saturday of the school holiday period;

   (d)For the second half of the Autumn, Winter and Spring school holiday periods in 2017 and each odd numbered year thereafter commencing at 9:00am on the middle Saturday of the school holiday period and concluding at 9:00am on the last day before the children are required to commence school at the beginning of the next school term;

7. By Consent the Mother and Father shall each spend time with the children on each of the following special days:

   (a)For half (either from 10:00 am to 2:00 pm or 2:00 pm to 6:00 pm) of each child’s birthday if the birthday falls on a weekend or if the child’s birthday falls on a week day for at least two (2) hours at times to be agreed;

   (b)With the Father from 10:00am to 3:00pm on his birthday;

   (c)With the Mother from10:00 am to 3:00 pm on her birthday;

   (d)If the Father would not otherwise spend time with the children on Father’s Day, with the Father from 10:00am to 3:00pm on Father’s Day or otherwise as agreed;

   (e)If the Mother would not otherwise spend time with the children on Mother’s Day, with the Mother from 10:00am to 3:00pm on Mother’s Day or otherwise as agreed.

8. By Consent each party shall immediately notify the other of any medical or other emergency affecting the children.

9. By Consent the parties are to enrol in a post separation parenting course.

10. By Consent each of the parties is restrained from attending the other party’s residence.

11. By Consent the children’s passports are to be held by the legal representatives of the parties and not be released without the agreement of both parties.

12. The Father must forthwith withdraw the enrolment application of X at (omitted) Public School.

13. The Mother is to do all things and sign all such documents as may be necessary to enrol the child X at (omitted) Public School to commence Kindergarten in Term 1 2016.

14. The child X is to attend (omitted) Public School and remain attending the said school until he completes his primary education unless the parties agree in writing that he should attend primary school or by further Order of the Court.

IT IS NOTED that publication of this judgment under the pseudonym Seever & Sutor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2712 of 2014

MS SEEVER

Applicant

And

MR SUTOR

Respondent

REASONS FOR JUDGMENT

Application in a Case

1. This is an Application by the Mother of two little boys called X and Y for urgent interim parenting orders. The Mother is the Respondent to an Application for final orders by the father, which is awaiting the preparation of a Family Report that was ordered on 6 July 2015.

2. There are no parenting orders in force at present and the children have been spending time with each parent on a shared week about basis. This Application has been brought about by an incident between the parents on 2^nd October 2015, described by the Mother’s solicitor as a “crisis point”.

3. The Father opposes the interim orders sought.

Background

1. The parties were married on (omitted) 2008 and separated on 28^th February 2013.

2. There are two children of the marriage. X was born on (omitted) 2010. Y was born on (omitted) 2012. They have been living with each parent on a week about basis since October 2013.[1]

   [1] Affidavit of Ms Seever 15 October 2015 at paragraph [6]

3. The Mother has four older children from a previous relationship, one of whom is an adult and lives separately. The other three children, aged 15, 14 and almost 13, live with the Mother and their father on a week about basis.

4. There was an incident between the parties on 2^nd October 2015 when, on the Mother’s evidence, the child X said that he did not want to go to the Father’s house for seven nights and began to cry. The Mother claims that the Father became angry, entered her house and placed his hand around her neck and moved her out of his way so forcefully that she was driven into a wall.[2] 

   [2] Ibid at [22]-[26]

5. The parties have also had differing views about which school the child X should attend when he commences school at the beginning of the first school term in 2016. The Mother wishes the child to attend (omitted) Public School, because it has a learning difficulties program, is centrally located between the residences of the parents and the children of several of the Mother’s friends.

6. The Application was returnable on 21^st October 2015. On that date, the parties entered into Consent Orders relating to some of interim parenting and financial issues between them. The interim parenting Orders to which the parties have consented are:

   1. The Mother and Father have sole parental responsibility in relation to the children X born (omitted) 2010 and Y born (omitted) 2012, when in their care.

   2. The Mother and the Father shall each spend time with the children on each of the following special days:

   (a)For half (either 10am to 2pm or 2pm to 6pm) of each child’s birthday if the birthday falls on a weekend or if the child’s birthday falls on a week day for at least two hours at times to be agreed.

   (b)With the father from 10.00am to 3.00pm on his birthday.

   (c) With the mother from 10.00 am to 3.00pm on her birthday.

   (d)If the father would not otherwise spend time with the children on Father’s Day, with the father from 10.00 am to 3.00pm on Father’s Day or otherwise as agreed.

   (e)If the mother would not otherwise spend time with the children on Mother’s Day, with the father (sic)[3] from 10.00am to 3.00pm on Mother’s day as agreed.

   [3] This appears to be a typographical error

   3. That each party shall immediately notify the other of any medical or other emergency affecting the children.

   4. Pursuant to s65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may flow if a person contravenes these orders are set out in the attached Fact Sheet and these particulars are included in these orders.

   5.  The parties to enrol in a post separation parenting course.

   6. Each of the parties be restrained from attending the other party’s residence.

   7. The children’s passports be held by the legal representatives of the parties and not be released without the agreement of both parties.

7. Orders 7 to 14 agreed by the parties relate solely to financial matters.  

Orders Sought

1. The Mother seeks the following interim Orders, as set out in her written submissions filed on 23^rd October 2015:

   1. The children, X, born (omitted) 2015 and Y, born live with the Mother.

   2. The Father spend time with the children commencing 25 October 2015, each alternate Sunday from 4pm until 4pm Tuesday and commencing 30 October 2014 (sic) each alternate Friday from 4pm until 4pm Sunday.

   3.  During Christmas, the children spend time:

   3.1    With the Mother:

   3.1.1From 3pm Christmas Eve until 9am Boxing Day in odd numbered years

   3.1.2.From 9am Boxing Day until 9am o 28 December in even numbered years.

   3.2    With the Father:

   3.2.1From 9am Boxing Day until 9am on 28 December in odd numbered years

   3.2.2From 3pm Christmas Eve until 9am Boxing Day in even numbered years

   4. The parties do all acts and things to facilitate X’s attendance at (omitted) Public School orientation sessions on 28 October 2015 and 4,11 and 18 November 2015 from 9:15am to 10:45am.

   5. That pending further order or unless otherwise agreed, the Father forthwith withdraw the enrolment application of X at (omitted) Public School.

   6. In the event the Court makes Orders 1, 2 and 3 as sought by the Mother, the Mother has sole parental responsibility in relation to the enrolment of X at (omitted) Public School to commence Kindergarten in Term 1, 2016.

   7. Pursuant to s.65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet and these particulars are included in these orders.[4]

   [4] This order is identical to Order 4 of the Consent Orders of 21 October 2015

2. The Father seeks these orders, as set out in his written submissions dated 26^th October 2015:

   1. That the mother and father retain equal shared parental responsibility for the long term care, welfare and development of the children:

   FULL NAME(S)  DATE(S) OF BIRTH

   X      (omitted) 2010

   Y                (omitted) 2012

   (together referred to as “the children” and otherwise referred to as “X” and “Y” respectively).

   2. The Mother and Father have equal shared parental responsibility in relation to the children.

   3. The Mother and Father continue to share the care of the children on a week about basis with the father to collect the children from school at the conclusion of school/day care on Friday during school term at McDonald's (omitted) at 11am on Friday during the holiday periods week one at the commencement of his time and the Mother to collect from school/preschool at the conclusion of school/preschool at the conclusion of school/preschool on Friday during school term or McDonald's (omitted) at 11am on Friday during the holiday periods week two.

   4. That notwithstanding anything stated in paragraphs 1 to 3 above the Mother and the Father shall each spend time with the children on each of the following special days:

   (a)For half (either 10am to 2pm or 2pm to 6pm) of each child’s birthday if the birthday falls on a weekend or if the child’s birthday is on a week day for at least two hours at times to be agreed.[5]

   [5] This proposed order, and those set out in the following subparagraphs (b) to (d) inclusive are identical to those in the Consent Orders of 21 October 2015

   (b)     With the father from 10am to 3pm on his birthday.

   (c) With the mother from 10am to 3pm on her birthday.

   (d)If the father would not otherwise spend time with the children on Father’s Day, with the father from 10am to 3pm on Father’s Day or otherwise as agreed.

   (e)If the mother would not otherwise spend time with the children on Mother’s Day, with the mother from 10am to 3pm on Mother’s Day or otherwise as agreed.[6]

   [6] Presumably this is what the parties intended in sub-order 2(e) of the Consent Orders of 21 October.

   (f)For half of Christmas Day at times to be agreed or in the absence of agreement:-

   i.   In 2015 and 2017:

   A.  With the Mother from 5pm Christmas Eve until 2pm Christmas Day.

   B.  With the Father from 2pm Christmas Day to 9am 27 December

   ii   In 2014 (sic) and 2016:

   C. With the Father from 5pm Christmas Eve until 2pm Christmas Day

   D. With the Mother from 2pm Christmas Day to 9am 27 December

   5.  That each party shall immediately notify the other of any medical or other emergency affecting the children.[7]

   6.  Pursuant to s.65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet and these particulars are included in these orders.[8]

   [7] This order is identical to Order 3 of the consent Orders made on 21 October 2015

   [8] Identical to Order 4 of the Consent Orders

Evidence

1. The Mother relied on her affidavit of 15^th October 2015.

2. In her affidavit the mother deposed that the children have been living in a shared care arrangement since October 2013[9] but she has been opposed to it almost from the start, saying:

   7. This has been done with my opposition to the arrangement continuing since very shortly after it first commenced however Mr Sutor refuses to make any alteration to the arrangements.

   8. I have at all times asserted that the boys, and in particular X become very distressed at the separation of a whole week from myself and their older siblings.

   9. I have pleaded with Mr Sutor on numerous occasions to end the week about arrangement.

   10.At all times during these proceedings I have maintained my position that the week about arrangement should end immediately.[10]

   [9] The parties separated in February 2013

   [10] Affidavit of Ms Seever 15.10.2015 at [7]-[10]

3. The Mother gave her account of the incident that took place on 2^nd October 2015, which she says began when the Father came to her house to collect the boys. She said that X refused to go with his father and began “crying and sobbing uncontrollably”.[11] He said that he only wanted to go to his father’s house “for two sleeps” but the Father insisted that the child was going “for seven sleeps”.[12]

   [11] Ibid at [22]

   [12] Ibid at [22]-[23]

4. The Mother deposed that the Father then came into the house, pushed her aside and chased X into the kitchen. He carried the still screaming child to the car and drove off.

5. The Mother stated that at about 9.03am the next day she received an SMS message from the Father, saying:

   “I have to say all that training, all that crossfit, all the body building, all the working out…hasn’t really helped ha sit, still just a girl!”[13]

   [13] Ibid at [30]

6. The Mother went on to depose that:

   a)Both boys are now “extremely clingy”;[14]

   b)Y began wetting his bed and wakes with night terrors;[15] and

   c)Y has begun to stutter.[16]

   [14] Ibid at [36]

   [15] Ibid at [37]

   [16] Ibid at [39]

7. The Mother also expressed concern about arrangements for X to commence school at the beginning of the first school term in 2016. The Father asked her about the child going to (omitted) Public School but she did not agree. The Mother wishes the child to attend (omitted) Public School as she intends to purchase a residence in the (omitted) area.

8. The Mother prefers (omitted) Public School because:

   a)She has friends in the (omitted) area whose children attend that school and are friends with X and Y;[17] 

   b)(omitted) is relatively central to the residences of both parents;[18] and

   c)The school offers a learning difficulties program.[19]

   [17] Affidavit of Ms Seever 15.10.2015 at [114]

   [18] Ibid at [116]

   [19] Ibid at [117

9. The Mother became aware that the Father had unilaterally enrolled the child at (omitted) Public School without her knowledge or consent.[20]

   [20] Ibid at [112]-[113]

10. The Father relied on his affidavit of 21^st October 2015.

11. In his affidavit the Father asserted that the week about arrangement was initiated by the Mother to operate in conjunction with her week about arrangements with her ex-husband in connection with her three older children.[21]  He said that the Mother did not ask for any other arrangement until he commenced proceedings in July 2014.[22]

    [21] Affidavit of Mr Sutor 21.10.2015 at paragraph [3]

    [22] Ibid at [4]

12. The Father asserted his belief that the week about arrangement is in the best interests of the children and should remain in place until final orders are made. A sudden change to the boys’ routine which has been in place for two years would be confusing and detrimental to them.[23]

    [23] Ibid at [10]

13. The Father gave his own account of the incident on 2^nd October. It is his evidence that the incident was precipitated by the Mother taking the boys home after they had been out rather than dropping them at his house in accordance with the usual arrangement.[24] She told him that the boys did not want to go with him.[25]

    [24] Affidavit of Mr Sutor at [16]-[20]

    [25] Ibid at [22]

14. The Father went to the Mother’s house to collect the children. He denies that he was the aggressor and asserts that the Mother was violent to him.[26] He conceded that the child X said he did not want to go with him.[27]

    [26] Ibid at [28]-[32]

    [27] Ibid at [28]

15. The Father went on to depose that he and the Mother have not agreed on schools for X. He states that until he read her affidavit he was not aware that the Mother wanted to live in the (omitted) area and wants the boys to go to (omitted) Public School.

16. The Father would prefer that the children attend the (omitted) Public School. The boys have already been enrolled there since July 2015. He has forwarded the Speech Therapist’s report about X to the school. The school is centrally located and across the street from (omitted) School where two of the mother’s other children attend.[28]

    [28] Ibid at [65]-[69]

Submissions

1. The Mother’s solicitor, Ms McMahon, submitted that as the Father seeks an order for equal time, the Court must first consider the presumption of equal shared parental responsibility. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, section 61C of the Family Law Act 1975 (Cth) provides that until a child turns 18 each of the child’s parents has parental responsibility for the child.

2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility for the child, which must be applied (s.61DA(1)) unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s.61DA(2)).

3. Under s.61DA(3) the presumption it to be applied when the Court is making an interim order unless the Court considers that it would not be appropriate do so.

1. The presumption may be rebutted where the Court is satisfied that it would not be in the child’s best interests for it to be applied (s.61DA(4)).

2. It was submitted that both parties complain of family violence. Also, it is uncontroversial that the parties experience great difficulty in reaching joint decisions in relation to what is in the children’s best interests. An order for equal shared parental responsibility is not in the children’s best interests, given the state of the parents’ co-parenting relationship.

3. If the Court were to apply the presumption of equal shared parental responsibility, the Court must then consider the matters in s.65DAA of the Family Law Act 1975, whether it is consistent with the best interests of the children and reasonably practicable for the children to spend equal time with each parent (s.65DAA(1)) or, if not, whether it is in the children’s best interests and reasonably practicable for the children to spend substantial and significant time with each parent.

4. The Mother does not suggest that an equal time order is not reasonably practicable but submits that an equal time order is not in the children’s best interests.

5. It is submitted that the orders that the Mother seeks attempt to address the children’s developmental needs having regard to their age and maturity. The Mother submits that the Father’s insistence on a week about arrangement which began when the X was aged 3 years and 2 months and Y was aged 1 year and 8 months was never age appropriate.

6. Although it is the Father’s position that the week about arrangement has existed for two years, the status quo should remain, the Mother submits that this proposal is erroneous, as it fails to address the objects in s.60B of the Family Law Act 1975 or the paramountcy principle in accordance with s.60CA.

7. The Mother’s solicitor submitted that if the parties’ competing applications were determined proximate to the commencement of the proceedings in July 2014, when the children were aged 3 years and 11 months and 2 years and 5 months respectively, it is highly improbable that the Court would make an order that the children live with their parents on a week about arrangement. The Court would be more likely to decline to make an order that saw the children spending more than one or two nights away from their mother and their half siblings when applying the considerations in s.60CC of the Act.

8. Further, it was submitted that an order to revert to a week about arrangement would fail to take the opportunity to dilute or undo the possible psychological and developmental harm that may have already been caused by long periods of separation from the children’s primary carer and half siblings, in circumstances where there is uncontroversial evidence that the older child, X, has displayed distress for at least 13 months.

9. It was submitted by the Mother’s solicitor that any effect on the children of change by the reduction of time with their father would be either counter-balanced or outweighed by the increase in time the children would spend with their mother and their half siblings, with whom they have very close relationship. Further, neither party deposes to any circumstances where the children have resisted or displayed distress at the proposition of spending time with their mother or separating from their father.

10. It was further submitted that the Mother’s proposal, which would see the children spending two nights per week with their father, on weeknights in the first week and over a weekend, would serve to meet the requirements of the primary considerations in paragraphs 60CC(2)(a) and (b) of the Act. Such an arrangement, it is submitted, would acknowledge the benefit to the children of having a meaningful relationship with both parents by providing for the children to spend substantial and significant time with both parents whilst minimising the separation anxiety currently being displayed by X by reducing the number of consecutive nights that he would stay away from his mother.

11. Ms McMahon referred the Court to an earlier Family Court decision in this matter, where Rees J heard an interim Application by the Father to take the children to take the children with him to the (country omitted) from 28^th November 2014 to 1^st January 2015, a period of five weeks (Sutor & Seever[29]). The children were aged four years and three months and two years and nine months old.

    [29] [2014] FamCA 1112

12. Her Honour was not satisfied that the benefit to the children of spending time with, and getting to know, their (nationality omitted) family outweighed the detriments of being separated from their mother and their half-brothers for such a lengthy period. Consequently, her Honour was not satisfied that the father’s proposal was in the best interests of the children and dismissed the Father’s application.

13. The submissions on behalf of the Mother did not address the issue of the child’s school.

14. The Father’s solicitor, Ms Moy, in her written submissions of 26^th October 2015, noted that there were no current orders in place in relation to the children (apart from the limited consent orders made on 21^st October).

15. It was submitted that the Father would acknowledge that at the time the shared care arrangement was put in place the children were very young but the arrangement was initially requested by the Mother and was designed to be consistent with orders in relation to the Mother’s older children. There have been “a number of interim hearings in both this Court and Family Court of Australia”[30] but at no time had either party sought a variation of the ongoing week about arrangement.

    [30] Father’s Submissions 26.10.2015 at paragraph [9]

16. Ms Moy submitted that the Mother has since the commencement of these proceedings maintained that the week about arrangement is not in the best interests of the children. The orders she now seeks are consistent with the orders she seeks on a final basis, as sought in her Response filed on 17^th September 2014.

17. It was submitted that the Mother’s proposed orders see a substantial reduction in the time the children spend with the Father, from seven nights a fortnight down to four.

18. Further:

    The Interim Orders proposed by the mother increase the number of hand overs and as such increase the number of points of potential conflict between the mother and the father.[31]

    [31] Father’s Submissions 26.10.2015 at [21]

19. This, it was submitted, would increase the risk of exposure to conflict for the children.

20. The Father seeks an order for equal time, which has been the case since the parties moved to separate residences in September 2013.

21. Following the legislative pathway, the Court must first consider the presumption of equal shared parental responsibility. The exposition of the law in this regard was in similar terms to that contained in the submissions on behalf of the Mother and need not be repeated. The parties are not in issue about the law to be applied, only as to the application of the facts to the law, noting that in some respects the parties’ views of the facts differ substantially.

22. It is submitted on behalf of the Father that there is no evidence to rebut the presumption in s.61DA(1) that it is in the children’s best interests for their parents to have equal shared parental responsibility for them. The Father does not support the Mother’s contention that the parents cannot communicate, as they regularly send each other emails and text messages.

23. The Father’s account of the incident on 2^nd October 2015 differs greatly from that of the Mother. He points out that the younger child, Y, went happily with him on that day, even though X said that he did not wish to go. The Father denies any violence against the Mother, who is a (occupation omitted).

24. Ms Moy made this speculation about the Mother:

    I would suggest that the mother’s response is more at frustration with the delays currently experienced by all in the Court than of any real concern for her own safety or that of the children.[32]

    [32] Father’s Submissions 26.10.2015 at [59]

25. The Father’s submissions can be summarised as:

    a)There is no real evidence on which the Court would be persuaded that the presumption of equal shared parental responsibility should be rebutted;

    b)An order should be made that the parties are to have equal shared parental responsibility for the children;

    c)There is no real evidence that equal time with their parents is not in the children’s best interests;

    d)The children are young and had the Mother’s application been made earlier it may have had some appeal to the Court but the equal time arrangement has existed now for two years;

    e)A change at this time, when X is about to start school, would not be in the children’s best interests;

    f)A Family Report has been ordered and the matters raised by the Mother will be addressed in a timely and appropriate manner; there is no evidence that would substantiate and

    g)The current conflict was on the Father’s evidence instigated by the Mother.

26. On the question of the child X’s schooling, it is the Father’s submission that:

    a)It was the Father who originally raised the issue of the child’s school;

    b)The Mother had never previously mentioned (omitted) Public School;

    c)The Mother’s children by her previous marriage attended (omitted) Public School;

    d)The Mother’s children by her previous marriage attend schools in very close proximity to (omitted); and

    e)The Father enrolled the child at (omitted) because he assumed that this would be the school the child X was to attend.

The law to be applied

1. The parties’ solicitors have clearly and accurately set out the relevant law in their written submissions and there is no need to expand any further on the legal framework in which this proceeding should be decided. Suffice it to say that I have considered the matters in sections 60B, 60CA, 60CC, 61DA, 61DB and 65DAA of the Family Law Act 1975 so far as they are relevant.

Consideration

1. The Full Court of the Family Court of Australia held in Goode & Goode[33] that a court at first instance in an interim hearing must consider the matters in s.60CC that are relevant and, if possible, make findings about them, noting that:

   (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place).[34]

   [33] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

   [34] [2006] FamCA 1346 at [82]; (2006) 36 Fam LR 422 at 445 [82]

2. As their Honours made clear:

   …the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.[35]

   [35] [2006] FamCA 1346 at [68]; (2006 36 Fam LR 422 at 442 [68]

3. Rees J, in the interim  proceeding before her in November 2014, recognised this limitation, with respect, at paragraph [4] of her Honour’s decision, where she said:

   There is a dispute about the circumstances of the care of the children after the separation of the parties. These are interim proceedings without cross-examination, and it is not possible to determine the facts which are in dispute. Additionally, the Court receives no assistance in these proceedings from a family consultant or other suitably qualified expert. The matter falls to be determined on the basis, only, of the untested affidavit evidence.[36]

   [36] [2014] FamCA 1112 at [4]

4. The parties’ affidavits give two different accounts of the matters in issue. For the above reasons, it is still not going to be possible to make factual findings purely on the basis of untested evidence

5. Incidentally, in the proceedings before Rees J, there was a Child Dispute Conference Memorandum from a Family Consultant available, dated 28^th October 2014. It would appear clear that this Memorandum was not brought to her Honour’s attention at the hearing, in the light of her comments in the passage quoted above.

6. The Child Dispute Conference Memorandum refers to the week about parenting arrangements. The Family Consultant noted that the Father wanted the week about arrangements to continue whilst the Mother wanted the boys to live with her and spend five nights a fortnight with their father.

7. The Family Consultant also noted the Mother’s claim that X often said that he did not want to go with his father and cries in great distress at changeovers. The Father was reported as saying that he had noticed an inexplicable change in the last four to six weeks but said that X was fine shortly after the transition occurred.

8. The Family Consultant recorded the Mother’s claim that the younger boy, Y, was showing signs of distress in recent times and cried terribly at changeover, whilst the Father said that Y was a more casual, laid back child.

9. It is noteworthy, that whilst Her Honour was not being asked to decide on the issue of week about shared care but on the separate issue of whether the Father should be permitted to take the children to the States for five weeks, her Honour said:

   7. It is not disputed that when the father secured his own premises he cared for the children in those premises on a week-about basis.

   8. The parents’ perceptions of the effect of those arrangements on the children are quite difference. It is the father’s evidence that the boys have settled well in the arrangement, and transfer easily from parent to parent. The mother is unhappy with the week-about arrangement and says that X in particular is reluctant to go to his father’s home.

   9. The father travelled to the (country omitted) between 11 July and 22 August 2014. There is no suggestion that the children were adversely affected by his evidence.[37]

   [37] [2014] FamCA 112 at [7]-[9]

10. With respect, not too much weight can be placed on the findings of Rees J in that interim hearing in deciding the issues before this Court. Her honour was dealing with an interim application in respect of another issue, namely whether the father should be permitted to take the children out of Australia to the (country omitted) for a period of five weeks. Her Honour was not being asked to make a finding on whether or not the week about shared care arrangement should continue.

11. It should not be overlooked that her Honour was, as in this case, determining the issue on the basis of untested affidavit evidence, as she said, and different affidavits at that. The affidavits upon which these parties are relying were not even in existence when the matter was before the Family Court.

12. What does emerge from the earlier proceedings is that:

    a)the Mother was asserting that the week about arrangement should not continue because it was causing the children distress; and

    b)the Father maintained that the week about arrangement was not causing the children distress and it should continue.

13. Clearly, this has been an issue between the parties for at least a year. It would seem to be the case that the incident of 2^nd October 2015, whatever the facts may have been, has precipitated the Mother’s Application and brought this issue into focus.

14. For the above reasons, it is not possible for the Court to determine which of the parties decided in the first place that the children should go from the care of one parent to the care of the other on a week about basis. It is not possible to make a conclusive factual finding as to whether the Father or the Mother were the aggressor in the unfortunate scene that took place between the parties on 2^nd October this year.

15. However, the original arrangement was clearly not a child focused arrangement, bearing in mind that in October 2013, when the agreement was entered into, X was aged 3 years and 2 months and Y was aged twenty months. Had the parties sought legal advice at the time, it is likely that they would have been informed that equal time shared care arrangements on a week about basis are seldom in the best interests of children under the age of four years, as young children need time to develop an attachment to a primary care giver and then to build up an attachment with the other parent. For these little children to be separated from a parent for seven days at a time is far too long, especially bearing in mind that Y was only twenty months old when this arrangement was put into place.

16. It is not a justification for such an arrangement to say that it suited the Mother’s parenting arrangements in respect of her children from her former marriage. Those children, aged now 15, 14 and almost 13, were adolescents at the time and had already had the opportunity to develop an attachment relationship with each parent. The situation is completely different for children under the age of four.

17. The week about shared care arrangement was not in the children’s best interests when it was instituted in October 2013. It still is not in their best interests, as is shown from the evidence of the distress exhibited by X and, to a lesser extent by Y, at changeover. It is not a persuasive argument to say that the arrangement has been in force for two years and so it should be allowed to continue. I am firmly of the view that this arrangement is not in the children’s best interests, if it ever was, and it should not be allowed to continue.

18. Shared care arrangements really only work when there is a degree of cooperation in the parents’ co-parenting relationship. It is not sufficient for the Father to point to the number of text messages and emails that pass between the parents as evidence of their ability to communicate. They may well be communicating their views, but there is precious little evidence of any agreement.

19. It is significant that the parties consented to an order on 21^st October 2015 restraining each one from entering into the other’s residence. This would appear to be an acknowledgment by the parties of the poor degree of cooperation between them.

20. The Mother’s opposition to the continuation of the week about shared care arrangement was clearly apparent when the parties attended a Child Dispute Conference on 28^th October 2014, because the Family Consultant specifically referred to it. Her Honour Justice Rees also referred to the parties’ contrasting views about this arrangement at the interim hearing on 18^th November 2014. It is regrettable that her Honour was not asked by the parties to decide that issue when the application by the Father to take the children to the (country omitted) was before the Court. It seems that an opportunity was lost.

21. In my view, the best interests of these still young children, X and Y, require that they should have one primary care giver and spend time on a regular basis with the other. The children have half siblings with whom they apparently have a good relationship and it would appear to be in their best interests that they should have a designated home with their mother and half siblings and spend time with their father for two nights a week.

22. I am not persuaded that the Mother should have sole parental responsibility for the children. Subsection 61DA(3) provides that when the Court is making an interim order, the equal shared parental responsibility presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

23. I do not consider that it would not be appropriate in the circumstances for the presumption to be applied when making these Orders. Accordingly, I will make an Order until further Order that the parties are to have equal shared parental responsibility for the children. It should be borne in mind that this is an interim Order. Section 61DB of the Act provides that if there is an interim parenting order in relation to a child, the Court must, in making a final parenting order, disregard the allocation of parental responsibility made in the interim order.

24. In other words, when the Court is considering making final parenting orders, either at a final hearing or by consent, consider the allocation of parental responsibility afresh.  

1. The parties entered into interim Consent Orders on 21^st October 2015 in which they resolved some parenting matters, such as birthdays, Mother’s Day and Father’s Day, with one obvious exception. It would be more convenient for the parties to have one set of parenting orders rather than two, so the previous Consent Orders will be reproduced into the Orders to be made.

2. However, the obvious exception is Order 2(e) from the Consent Orders, which states that the parties will spend time with the children:

   If the mother would not otherwise spend time with the children on Mother’s Day, with the father[38] from 10.00 am to 3.00 pm on Mother’s Day or otherwise as agreed.

   [38] Emphasis added

3. As Order 2(d) provided that the children would spend time with the Father on Father’s Day, it seems highly unlikely that it was the intention of the parties that the children would specifically spend time with the Father on Mother’s Day as well. This is clearly an error and it will be corrected in these Orders.

The Primary School to be attended by X

1. That just leaves the question of school for the child X. The mother wants the child to start his schooling at (omitted) Public School. The father has already enrolled the child at (omitted) Public School, which he appeared to have done unilaterally without raising the issue with the mother first.

2. The Full Court of the Family Court held in Re G:Children’s Schooling[39] that:

   a)there is no legal presumption in favour of the choice of the parent with whom the child primarily resides, but the reality of a child residing predominantly with one parent may be relevant;

   b)it is a question of weight to be put on or should be placed on either party’s assessment of the benefit to the child of a change or otherwise in schools;

   c)where prima facie two schools are satisfactory, weight should be placed on a school that is closer;

   d)the objects and principles of the Family Law Act 1975 are to be taken into account; and

   e)the best interests of the child involve a consideration of the relevant matters in s.60CC(3) of the Family Law Act 1975.

   [39] [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025

3. There is no evidence that either of the two schools would not offer the child X a good primary education. If the Mother does indeed intend to reside in the (omitted) area, then (omitted) Public School would appear to be more convenient, as X will be living primarily with his mother.

4. The Mother also appears to have considered such matters as the child having friends at the school when he attends, being the children of friends of hers whom he already knows. She also believes that the school offers a learning program that may assist X’s particular need, being speech dyspraxia.

5. In my view the child’s best interests lie in his commencing at (omitted) when he starts the school year at the beginning of Term 1 in 2016.

6. I will order accordingly. The order will be an interim order and may be reviewed at a final hearing. No order will be made for Y, as he is too young to start school. His education will be considered at a final hearing.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  11 January 2016