SEGURA & PERRIS
[2019] FCCA 2556
•19 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SEGURA & PERRIS | [2019] FCCA 2556 |
| Catchwords: FAMILY LAW – Parenting – interim hearing – final orders made in 2013 – substantial and significant time – parental responsibility – whether an order should be made for the children to spend substantial and significant time with each of their parents. |
| Legislation: Family Law Act 1975 (Cth), ss. 60B, 60CA, 60CC, 61DA, 65DAA. Child Support (Registration and Collection) Act 1988 s. 116(2). |
| Cases cited: Goode & Goode (2006) FLC 93-286. Mazorski & Albright (2007) 37 FLR 518. Godfrey & Sanders (2007) 208 FLR 287. M & S (formerly E) (2007) FLC 93-313. Tait & Densmore [2007] FamCA 1383. McCall & Clark (2009) FLC 93-405. MRR & GR [2010] HCA 4. Marvel & Marvel (2010) 43 Fam LR 348. Chapa & Chapa (2013) FLC 93-538. Banks & Banks (2015) FLC 93-637. Bondelmonte v Bondelmonte (2017) 259 CLR 662. |
| Applicant: | MR SEGURA |
| Respondent: | MS PERRIS |
| File Number: | SYC 5148 of 2010 |
| Judgment of: | Judge Morley |
| Hearing date: | 8 May 2019 |
| Date of Last Submission: | 8 May 2019 |
| Delivered at: | Sydney |
| Delivered on: | 19 September 2019 |
REPRESENTATION
| Mr Segura appeared in person as the Applicant |
| Ms Perris appeared in person as the Respondent |
| Solicitors for the Independent Children's Lawyer: | Ms Smith of Katie Smith Solicitor |
PENDING FURTHER ORDER, THE COURT ORDERS THAT:
Subject only to order 2, the child X, born … 2007 (“X”), is to remain enrolled at and attending B High School.
In the event that the child X notifies the Applicant father, the Respondent mother and the Independent Children’s Lawyer that he wishes to change from B High School to Suburb T High School, then the parties must do all things necessary to enrol X in, and ensure his attendance at, Suburb T High School.
In the event that X requests of either parent that they facilitate his communication with the Independent Children’s Lawyer so as to express his wish pursuant to order 2, then that parent will do all things necessary to so facilitate communication between X and the Independent Children’s Lawyer for that purpose.
For the balance of the 2019 school year the children Y, born … 2008 (“Y”), and Z, born … 2011 (“Z”), will continue to be enrolled at and attending C Public School.
Each of the parents is to do all things necessary to enrol both Y and Z in D Public School for the 2020 school year, and to ensure their attendance at that school for the 2020 school year and thereafter, until further order.
Order 4.4.2 of the “Terms of Settlement” forming part of orders made on 15 March 2013 is discharged.
The children spend time with their father each week during school terms from the end of school/after-school care on Wednesday until the commencement of school on Thursday.
Notwithstanding any other order, on the weekends that the children would be with the mother and X has a sports event or fixture, then the mother shall do all things necessary to deliver X to the father at the Suburb E Ferry Wharf no later than two hours before the required time of attendance at the event or fixture, and the father must return X to the same place no later than two hours after the event or fixture has concluded, and if such return will be after 6:00pm, then that return time will be at 9:00am the following morning if a non-school day, and by delivery of X to school on time at the commencement of school day PROVIDED THAT the father shall notify the mother by way of email immediately upon his becoming aware of any such event or fixture, setting out at least the date, time and venue of the event or fixture.
The father shall not enrol X in any sporting team other than sporting teams in which he is currently enrolled, and any representative teams for which he qualifies, without the consent of the mother.
IT IS NOTED that publication of this judgment under the pseudonym Segura & Perris is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 5148 of 2010
| MR SEGURA |
Applicant
And
| MS PERRIS |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant father, Mr Segura (“the father”) and the Respondent mother, Ms Perris (“the mother”) were married on … 2006, separated in May 2009, and divorced on 15 November 2010. There are three children of their marriage, the subjects of these proceedings, being X born … 2007, twelve years of age (“X”), Y born … 2008, ten years of age (“Y”), and Z born … 2011, eight years of age (“Z”).
Proceedings in relation to parenting issues were originally commenced by the father on 7 August 2012, and those proceedings culminated in comprehensive consent orders relating to parenting of their children made on 15 March 2013 by His Honour Judge Monahan. Those orders provided, in summary, that the children live with their mother and spend defined time with their father each alternate weekend from Friday to Monday, each Tuesday night, and half of the school holidays.
These proceedings were commenced by an Initiating Application filed by the father on 26 September 2018, seeking a discharge of the final parenting orders made on 15 March 2013, and alternate interim and final parenting orders, including that the children live with him and spend supervised time with their mother by agreement, and failing agreement, each alternate Saturday from 1:00pm to 6:00pm.
The mother filed her Response on 13 November 2018 seeking, on both an interim and final basis, that the final orders made on 15 March 2013 remain in effect, subject to certain alterations having the effect of reducing the amount of time the children spend with their father and other orders in relation to the schools to be attended by the children.
The father filed an Amended Initiating Application on 1 May 2019, the principal alteration being proposed that the children’s supervised time with their mother occur each alternate Sunday from 1:00pm to 6:00pm on an interim basis, and on a final basis each alternate Saturday from 2:00pm to 7:00pm, and each alternate Sunday from 1:00pm to 6:00pm.
Both parties sought interim and final orders in relation to the schools to be attended by the children. The father sought an order that the children Y and Z continue to attend C Public School and that X attend B High School, commencing at the start of the 2019 school year. The mother sought orders that the children Y and Z change their school attendance to D Public School, and that X attend Suburb T High School for the 2019 school year and thereafter.
The mother has a child of another relationship, A, born … 2016 (“A”). A lives with the mother and her half-siblings, and spends time with her father three days per week during the day.
The father lives at Suburb U and the mother lives in Suburb F, adjacent to D Public School and Suburb H.
The matter came before Judge Monahan on 14 November 2018 for its first return date. Orders were made that the children be independently represented in the proceedings, that the parties and children attend a Child Inclusive Conference with a Family Consultant on 9 January 2019, and that the matter be adjourned to 31 January 2019 for directions.
On 31 January 2019, orders were made by consent that the parents do all things necessary to cause X to be enrolled in and attend B High School and for Y and Z to be enrolled in and attend C Public School. The matter was adjourned to 8 May 2019 for interim hearing limited to the following issues:–
a)Whether X should remain enrolled in and attend B High School or whether he should be enrolled in and attend Suburb T High school;
b)Whether Y and Z should remain enrolled in and attend C Public School or whether they should be enrolled in and attend D Public School;
c)The children’s participation in extra-curricular activities;
d)Whether the current spend time with arrangements should be increased or decreased; and
e)The changeover location on non-school days.
Orders were made that each of the parties file and serve one consolidated affidavit relevant at interim hearing.
The Interim Hearing
An interim hearing occurred before me on 8 May 2019 for determination of the issues identified at the mention on 31 January 2019.
Despite the order made that the parties file and serve one consolidated affidavit of the evidence on which they would rely on interim hearing, the father sought to rely on:
a)His affidavit sworn 21 September 2018;
b)His affidavit sworn 29 January 2019; and
c)His affidavit sworn 30 April 2019, a total of forty pages of text
The mother sought to rely on:
a)Her affidavit sworn 13 November 2018;
b)Her affidavit sworn 26 January 2019; and
c)Her affidavit sworn 24 April 2019, a total of forty-one pages of text
In this regard both parties ignored the order made 31 January 2019 and Practice Direction No. 2 of 2017.
The father also relied on:
a)The affidavit of his partner, Ms J, sworn 28 April 2019;
b)The affidavit of Ms K, a manager of X’s sports team during the 2018 season, sworn 28 January 2019; and
c)The affidavit of Mr L, the head coach of X’s sports team, sworn 28 January 2019.
The father provided a minute of proposed orders, varying from the interim orders sought in his Amended Initiating Application.
The mother also relied upon:
a)The Expert Report dated 5 December 2012, prepared by Ms M, Clinical Psychologist, prepared pursuant to an order in the earlier proceedings; and
b)The affidavit of Ms N, a friend of the mother and fellow resident in Suburb F, sworn or affirmed 23 April 2019; and
c)The affidavit of Ms O, a long-time friend of the mother’s, affirmed 23 April 2019.
The mother provided a Case Outline document that included the interim orders sought by her.
I have read and considered all of the affidavit evidence relied upon by the parents.
I was assisted at the interim hearing by Ms Smith, the Independent Children’s Lawyer. Ms Smith provided an Outline of Case document and a hand written minute of proposed orders. I was also assisted by a Child Inclusive Conference Memorandum to Court dated 9 January 2019, prepared by Family Consultant Ms P, following her interviews with each of the parents and each of the children on that day.
The parties competing proposals at Interim Hearing
Despite having sought both interim and final orders in his Amended Initiating Application that the parenting orders made 15 March 2013 be discharged, that the children live with him and spend supervised time with their mother, at interim hearing the father provided a minute of proposed order seeking that the orders of 15 March 2013 remain in place subject to his weekly time with the children being changed from Tuesday to Wednesday under those orders, to Wednesday to Thursday.
The father sought an order that the parents be restrained from removing the children from their respective schools, being B High School for X and C Public School for Z and Y, without the consent of the other parent or order of the Court, in addition to various orders in relation to the children’s attendance and extra-curricular activities. In particular, orders were sought in relation to X and Z’s club and representative commitments in sports.
In the mother’s minute of order, she sought that Y and Z be enrolled to attend D Public School until she graduated from Year 6, and that X be enrolled in Suburb T High School until he graduate school, with Y and Z to follow him on to Suburb T High School and remain there until they graduate.
The mother sought that the final orders of 15 March 2013 remain in place other than to reduce the father’s alternate weekend time from after school Friday to after school Monday, down to after school Friday to 6:25pm on Sunday, and to reduce the father’s weekly Tuesday to Wednesday time down to from after school on Tuesday to 6:25pm on that day.
The mother sought to have the changeover location, when changeover is not occurring at the children’s schools, changed from Suburb Q McDonald's Family Restaurant to the Suburb E Ferry Wharf. The mother sought an order that the children be in her care, if not otherwise, on A’s birthday on … 2020 from 8:30am until 7:00pm. The date of … 2020 will be a Sunday.
The Independent Children’s Lawyer’s Minute of Order sought that the father’s weekly time under the 2013 orders be changed from Tuesday to Wednesday, to become Wednesday to Thursday, supporting the father’s application in that regard. The Independent Children’s Lawyer also sought orders to ensure that X be in his father’s care on any occasion when he has a sports event or fixture.
The Independent Children’s Lawyer sought to vacate order 6 made in the 2013 orders relating to changeovers other than from school. The Independent Children’s Lawyer sought an order that changeovers not occurring where the father collects the children from school were to occur at the Suburb E Ferry Wharf, supporting the mother’s application in that regard.
The Child Inclusive Conference Memorandum to Court
During her interview with Family Consultant Ms P, the mother reiterated matters relating to family violence that predated the 2013 orders.
The father alleged that the mother was:
…regularly verbally abusive towards him during the marriage.
Both parents criticised the other parent’s parenting. No issues relating to mental health, substance abuse or risk of abduction were raised.
The Family Consultant noted:
The parents reported a long-term distrustful relationship between them
And:
The parents presented opposing allegations of the other parent not facilitating the children’s relationships with them, such as at sport events and not encouraging the children to say hello or show affection to them.
Helpfully, for the purposes of the interim hearing, the Memorandum notes the following:
a) The children unreservedly reported being happy living in Suburb F with their mother and said that they have friends there. They each separately reported being content with the current parental arrangements, that is, that they continue to live with their mother and spend time with their father.
b) Each of the children separately expressed the wish that their parents could get along and be able to speak with each other. They all reported that their parents do not get along. They also expressed concern about being fair and not wanting to hurt either of their parents.
c) X seemed to be quite aware of his parent’s wishes and to be trying to tread a middle path. X appeared able to describe the issues regarding his future high school and the differences between his parents clearly and thoughtfully, including him having possible solutions for the concerns of his parents about high school…he …loves both of his parents.
d) X said that he loves sports and wants to attend B High School….and that he wants to be able to attend B High School for at least the first year and that, if it is not as he wishes, he would change to Suburb T High School. He added that he would be upset if not permitted to attend B School High School.
e) X said that, although he wants to remain living with his mother, he had discussed with his father that he might like to spend an extra night on Thursday with his father to enable him to attend training. He added that he would be happy to go without his siblings.
f) Y said that he attends C Public School and he likes the school. He added that he has more than ten friends at the school…Y expressed some doubt about changing schools because he is settled in his current school…Y said that he wishes that his father and mother could stand next to each other and talk to each other.
g) Z said that she attends C Public School and likes the school… She said that she loves living with her mother…and even though she likes her current school, she would be happy to change schools to D Public School because it is close to home and because her best friend goes there.
Under the ‘Future Directions’ heading, Ms P notes:
It appears that the risk of most concern for the children’s long term psychological health and well-being is the mistrustful and poor parental communication.
All three children report being happy living with their mother and their small sister, A, in Suburb F, and reported that they are content with the time that they spend with their father.
Ms P further notes:
From this preliminary assessment, the children appear to be safe in their current arrangements and their parenting arrangements should remain in place with stability prioritised for them
Ms P opined that X’s views can be given weight due to his age and stage of development and the consideration that he has given to them. Ms P further opines that the younger children are likely to do well in whichever school they attend and that the major issue would be the logistical and practical issue for one or the other parent.
Finally, Ms P suggested that the parents might benefit from attending the Uniting Keeping Contact program.
Should there be any alteration to the time the children spend with their father pursuant to the orders made 15 March 2013 and/or to the schools they attend?
As is made evident in the cases, and in particular in Goode & Goode,[1] the statutory pathway applies in interim as well as in final hearings, though the Court should be cautious in making findings of fact where there is contested evidence.
[1]Goode & Goode (2006) FLC 93 – 286.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders and the principles behind those objects. I have considered those objects and the principles behind those objects in formulating these reasons and the parenting orders that result.
Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child or children as the paramount consideration.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the primary considerations set out in subsection (2), noting the weighting requirement in subsection (2A), and the additional considerations set out in subsection (3).
Section 61DA(3) provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. When the Court is making an interim order, the 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.
Pursuant to section 65DAA, if the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must first consider whether the child spending equal time with each of the child’s parents would be in the best interests of the child and reasonably practicable, and if it is so in the best interests of the child and reasonably practicable, consider making an order for the child to spend equal time with each of the parents.
If equal time is found not to be in the child’s best interests, or impracticable, or is found to be in the child’s best interests and practicable, but the Court considers and rejects equal time with each parent, as a result of consideration of one or more of the matters in section 60CC, then the Court must consider making an order that the child spends substantial and significant time (as defined in section 65DAA (3)) with each of the parents, on the same triple-step basis as for the consideration of equal time.[2]
[2] See MRR & GR [2010] HCA 4.
Under the combination of sections 60CA, 60CC, and 65D if neither equal time nor substantial and significant time is considered to be in the best interests of the child, or is impracticable, or are considered to be in the best interests of the child and practicable, but after considering making such an order does not do so, then the Court may make such orders in the discretion of the Court as it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC. The process is one involving the exercise by the Court of a judicial discretion.
As was said by the High Court in Bondelmonte v Bondelmonte[3] at paragraph 32 of the joint judgment:
[32]A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion [Norbis v Norbis (1986) 161 CLR 513 at 518], as does the overall assessment of what is in the best interests of the child.
[3]Bondelmonte v Bondelmonte (2017) 259 CLR 662.
In relation to the considerations in section 60CC, the Full Court said in Banks & Banks,[4] at paragraphs 47 to 50:
[47]As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.
[48]It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded Court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
[49]Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
[50]When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
[4]Banks & Banks (2015) FLC 93-637.
I will consider the relevant section 60CC considerations, then give attention to the requirements of section 61DA in relation to parental responsibility and what may flow from that on the legislative pathway, then consider and discuss the issues in this interim hearing, all in the light of my considerations of section 60CC.
The Primary Considerations
Sub-section 60CC(2) sets out the primary considerations the Court must consider when determining what is in a child’s best interests. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents, and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Sub-section 60CC(2A) mandates that in applying the primary considerations, the Court is to give greater weight to the need to protect the child over the benefit to the child of having a meaningful relationship with both of the child’s parents.
The benefit to the child of having a meaningful relationship with both of the child’s parents
What is meant by a “meaningful relationship” in section 60CC(2)(a) has been the subject of a number of leading cases.
In Mazorski & Albright[5] Brown J considered ordinary definitions of the term “meaningful” and observed:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
[5] Mazorski & Albright (2007) 37 FLR 518.
Kay J sitting in the appellate jurisdiction of the Court as a single Judge in Godfrey & Sanders,[6] an appeal involving an application by a mother to relocate, agreed with Dessau J in M & S (formerly E)[7] and said at paragraph 33:
[33] The Act sets out in s 60CC several matters for the Court to consider in determining what is in the child’s best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case. For the purposes of this case the legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child’s parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case.
[6] Godfrey & Sanders (2007) 208 FLR 287.
[7] M & S (formerly E) (2007) FLC 93-313.
Later, at paragraph 36, his Honour said:
[36] It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
In Tait & Densmore,[8] Cronin J considered the distinction made by Kay J in Godfrey & Sanders between an optimal relationship and a meaningful relationship and said at paragraph 170:
[170] Kay J distinguish between the optimal relationship and the meaningful relationship. The distinction is clear. An optimal relationship is one which is second to none, unmatched and unequalled. That cannot be what the legislation intended. To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. Those adjectives mean that the children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate to others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.
[8] Tait & Densmore [2007] FamCA 1383.
In McCall & Clark,[9] after referring to the matters quoted above from Kay J in Godfrey & Sanders, the Court said:
[9] McCall & Clark (2009) FLC 93-405.
[118] It appears to us that there are three possible interpretations of s 60CC(2)(a):
(a)one interpretation is that the legislation requires a Court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
(b)a second interpretation is that the legislature intended that a Court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and
(c)the third interpretation is that the Court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).
[119] We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a Court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a Court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
[120] We reject the interpretation in sub-paragraph (b). In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.
[121] In coming to our conclusions we accept as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazorski. Consistently with our conclusions we also agree with the reasoning of Bennett J in G & C.
[122] In reaching these conclusions, we also consider the legislation requires a Court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
There is nothing in any of the evidence presented by either of the parents or in the Child Inclusive Conference Memorandum to Court that indicates other than that each of the children have a meaningful, close and loving relationship with each of their parents.
At this interim hearing, it has not been put in dispute that the children will continue to live principally with their mother. The father does not seek to extend the time that he spends with the children, other than in relation to X’s attendance at sports fixtures, only to alter the weekly overnight occasion from Tuesday to Wednesday, to become Wednesday to Thursday. As the children have been spending that amount of time with their father, as well as half the school holidays, since the last “step” of the 2013 orders commenced at the start of School Term 3 in 2016, it is inherent that the children are able to maintain and develop their meaningful relationship with their father through spending that time with him.
As stated above, the mother in her proposed orders seeks to reduce the time the father spends with the children by eliminating the weekly overnight occasion mid-week, and by contracting the alternate weekends from Monday morning start of school, back to Sunday evening at 6:25pm.
The mother’s evidence in support of a contraction of the father’s time with the children being in their best interest seems to rest upon comments made by (now Dr) Ms M in the Expert’s Report dated 5 December 2012 . However, that Report was available to the parties from 13 December 2012, well before the consent orders made on 15 March 2013. Accordingly, and having read that report in full, I find that there is no reason based thereon to consider now contracting the father’s time below what was provided in the 2013 orders.
The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The mother gives extensive evidence in her affidavit sworn 13 November 2018, at paragraphs 21 to 23, of what she refers to as:
…parental alienation and psychological harm.
Such harm allegedly caused by the father and “contravention of Court orders” allegedly committed by the father and in paragraph 25, extending over four pages, gives evidence of “extracurricular activities and emotional support” to the effect that it is she who supports the children in their extracurricular activities, though it is difficult to bring that evidence to the point on any of the issues in this interim hearing.
Again in her affidavit affirmed 24 April 2019, the mother gives evidence in paragraphs 41 to 49 of a risk of psychological harm, for example the father undermining the mother’s relationship with the children, and repeats her earlier evidence in relation to “contravention of Court orders” and “extracurricular activities and emotional support”.
I have carefully read and considered all of the evidence presented by the mother on interim hearing and in particular the evidence referred to in the previous two paragraphs, and I find that none of the matters addressed by the mother present a risk to any of the children from physical or psychological harm or being subjected or exposed to any abuse, neglect or family violence. On that basis I can find no support in my consideration of the primary considerations for making orders contracting the father’s time with the children.
The Additional Considerations
In relation to the additional considerations set out in section 60CC(3), I find as follows.
Any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The children’s views are expressed through the Family Consultant’s report in the Child Inclusive Conference Memorandum to Court.
The Family Consultant opines:
They each separately reported being content with the current parental arrangements, that is, that they continue to live with their mother and spend time with their father… X indicated that he might like to spend an extra night on Thursday with his father to enable him to attend training.
The father did not seek an order to this effect.
I have already made findings above in relation to the nature of the relationship of each of the children with each of their parents, finding each such relationship is a meaningful, close and loving relationship.
The father lives with his new partner, Ms J. Ms J has a twelve-year-old son who lives with her and the father “approximately 10 days a fortnight”. Ms J provided an affidavit affirmed by her on 28 April 2019, and relied upon by the father at interim hearing. Ms J spends much of that affidavit criticising the mother.
There is no reason on the evidence to find that each of the children has other than an appropriate relationship with Ms J as the father’s new partner.
In the mother’s household the children have their half-sibling, their sister A. Currently, A is not of school-age and the greater part of the time that she spends with her father during school term is when X, Y and Z are at school. On the evidence, there is no reason to believe other than that there is a close and loving sibling relationship between each of the children and A.
The extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child
It is inherent in all of the evidence that each of these parents has taken every opportunity available to them to participate in making decisions about major long-term issues in relation to the children, to spend time with the children and to communicate with the children. There is nothing in this consideration that indicates that the time the father spends with the children should be cut down.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
In paragraph 14 of the mother’s affidavit, affirmed 26 January 2019, she gives evidence that as at 22 October 2018 the father owed $9,741 arrears of Child Support. In support of that contention the mother Annexed to that affidavit a letter from Child Support Agency, dated 22 October 2018, confirming those arrears and attaching a certificate under section 116(2) of the Child Support (Registration and Collection) Act 1988 confirming those arrears. The evidence was also given by the mother in her affidavit affirmed 13 November 2018, in paragraph 19.
In paragraph 17 of the father’s affidavit sworn or affirmed by him on 29 January 2019, he responds to paragraph 19 of the mother’s affidavit of 13 November 2018 and asserts that the asserted arrears are the subject of an Appeal lodged by him with the Child Support Agency, and in particular, in relation to his assertion that he had made electronic fund transfers to the mother to the sum of $6,000 that had not been taken into account in calculation of those asserted arrears.
In the mother’s affidavit affirmed 24 April 2019, she is silent on the issue of arrears of Child Support, as is the father in his affidavit affirmed 30 April 2019. Patently, the mother, as the children’s principle live-with parent, has fulfilled her obligation to maintain the children and there is no current evidence pursuant to which I find that the father has done other than fulfil his obligation to maintain the children.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
If orders are made in accordance with the mother’s application for interim orders reducing the time the father spends with the children by dispensing with the midweek overnight occasion, and reducing the alternate weekend times during school term by one night, then the wishes and views expressed by the children as reported in the Child Inclusive Conference Memorandum to Court will not have been fulfilled.
It is likely on the totality of the evidence that the effect on the children will be the cause of dissatisfaction and unhappiness. In this regard I note the wishes expressed by both X and Y that they may seek to spend more time with their father than the regime that has run since the last stage of the March 2013 orders commenced at the start of school term three in 2016.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The only change to the practical difficulty and expense of the children spending time with their father that would flow from a change in relation to Y and Z’s schooling, is that the father would be required to travel from Suburb U to D Public School to collect them from school, and deliver them to school, as opposed to travelling from Suburb U to C Public School.
The father works full-time in Suburb V, a suburb on the Region R to Suburb S and immediately to the west of Suburb G. The travel distance required for the father to collect the children from D Public School and B High School from his place of work, and even from his home in Suburb U, is negligible, the whole being well inside the Region R area between Suburb U and Suburb D.
The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs
Despite the assertions set out in the three affidavits of her evidence relied upon by the mother at the interim hearing, I find on all of the evidence that each of the parents has the capacity to provide for the needs of each of the children, including the emotional and intellectual needs.
The father has the capacity to provide for X’s sporting needs and, in the event that he follows in his brothers sporting footsteps, whether sports or other sport, similarly for Y. I also note in this regard that Z told the Family Consultant that:
…she likes sports (which she does with her father), sports (which she does with her mother)…
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
On interim hearing, it is difficult to make findings in relation to the attitude to the children and their responsibilities of parenthood demonstrated by each of the children’s parents given the great fund of conflicting evidence contained in the three affidavits relied upon by each.
I am not assisted by the evidence of Ms O and Ms N on behalf of the mother, or Ms K and Mr L on behalf of the father.
The evidence of the father’s partner, Ms J is, as expected in this situation, of moderately high conflict and lack of cooperative parenting between the parents, supportive of the father and critical of the mother.
On interim hearing the Court must be cautious in making findings on undisputed and conflicting evidence, and as this is not a matter where risks are asserted I need not take the analysis of that evidence any further .
I am mindful of the guidance of the Full Court in Marvel & Marvel,[10] Chapa & Chapa[11] and Banks & Banks[12]in relation to the proper approach to matters of contested and disputed evidence in interim hearings.
[10] Marvel & Marvel (2010) 43 Fam LR 348.
[11] Chapa & Chapa (2013) FLC 93-538.
[12]Banks & Banks (2015) FLC 93-637.
I do not find that there is any necessity to give consideration to the matters referred to in subparagraphs (g), (h), and (j) to (m) inclusive of section 60CC(3).
On the basis of my consideration of the matters referred to in the primary considerations and additional considerations in section 60CC, I find that it is not in the best interests of the children to make the orders as sought by the mother contracting the time that the children spend with their father below that provided in the consent orders of 15 March 2013.
I do find that it is in the children’s interest to make an order as sought by both the father and the Independent Children’s Lawyer altering the weekly overnight occasion during school term time from each Tuesday at the end of school/after-school care to the commencement of school Wednesday, to now be each Wednesday from the end of school/after-school care under the commencement of school on Thursday.
I further find that it is in the best interests of X to make the orders as sought by the Independent Children’s Lawyer that provide for X to spend time with his father on occasions when he has a sports event or fixture.
Alteration to the Order Relating to Changeovers
At the interim hearing I was asked by each of the parties and the Independent Children’s Lawyer to make an order, by consent on a final basis, that the place of changeover of the children at the start and finish of spending time with their father, where not occurring at one of the children’s schools, will be at the Suburb E Ferry Wharf. That order was made by me on 8 May 2019. At the same time, and in consequence of that order being made, I also made an order by consent vacating order 6 in the Terms of Settlement pursuant to which orders were made on 15 March 2013.
Parental Responsibility
As referred to above, section 61DA provides that when making a parenting order in relation to children, I must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them. The presumption does not apply if there are reasonable grounds to believe that a parent of the children (or a person who lives with a parent of the children) has engaged in abuse of any of the children or another child who, at the time, was a member of the parents’ family or engaged in family violence.
When making an interim order, the presumption applies unless I consider that it would not be appropriate in the circumstances for the presumption to be applied when making that interim order. The presumption may be rebutted by evidence that satisfies me that it would not be in the best interests of the children for their parents to have equal shared parental responsibility for them.
The orders made by consent on 15 March 2013 include an order that the parties have equal shared parental responsibility for the children. That is a final order and still in force. There is no application by the parents in this interim hearing to vary or discharge that order.
Section 65DAA(1) provides that if a parenting order provides that the children’s parents are to have equal shared parental responsibility for them, then the Court must decide whether the children spending equal time with each of the parents would be in their best interests. The Court must consider whether the children spending equal time with each of the parents is reasonably practicable and, if it is, consider making an order providing for the children to spend equal time with each of the parents.
I am not making an order in relation to parental responsibility, as a final order for equal shared parental responsibility is still in force and is not sought to be altered by either of the parties. However, for completeness, I will consider the matters referred to in section 65DAA(1). Neither parent has sought an order that the children spend equal time with each of the parents.
Based upon the whole of the evidence presented on interim hearing by each of the parents, their parenting relationship is very poor and their ability to communicate for the benefit of the children is also very poor. The children have been settled, at least since the final orders were made on 15 March 2013, in a regime where they live with their mother and spend time each alternate weekend, and on each Tuesday night, with their father.
The children expressed to the Family Consultant their satisfaction with the current parenting arrangements and each expressed his or her desire to continue living with their mother and spending that time with their father. I consider that it would not be in the best interests of the children to make an order that the children spend equal time with each of the parents.
Due to the proximity in which the parents live and their proximity to whichever of the children’s schools will apply pursuant to the orders I will make, it is reasonably practicable for the children to spend equal time with each of the parents.
As I do not consider that it would be in the best interest of the children to make an order that they spend equal time with each of their parents, though reasonably practicable, I will not make such an order.
Section 65DAA(2) provides that if an order provides that the children’s parents have equal shared parental responsibility for them and I do not make an order for the children to spend equal time with each of the parents, then I must consider whether the children spending substantial and significant time with each of the parents would be in the best interests of the children. The Court must consider whether the children spending substantial and significant time with each of the parents is reasonably practical and, if it is, I must consider making an order to provide for the children to spend substantial and significant time with each of the parents.
Substantial and significant time includes children spending time with each parent on days that fall on weekends and holidays, and days that do not fall on weekends or holidays, and allows each of the parents to be involved in the children’s daily routine and occasion, and events that are of particular significance to the children or any of them, and allows the children to be involved in occasions and events that are of special significance to each of their parents.
The Court is not asked by the father or the Independent Children’s Lawyer to alter the amount of time per fortnight during school term that the father spends with the children. The Court is only asked to change the midweek overnight from Tuesday to Wednesday, to Wednesday to Thursday.
I do not consider that the time the children spend with their father during school term under the orders made 15 March 2013 comes fully within the meaning of substantial and significant time as set out in section 65DAA(3) as it does not include a full and uninterrupted school day, but only parts of four school days. Nevertheless, I do not consider that it is in the children’s best interests to make an order that they spend substantial and significant time with each of their parents at the present time.
The children spending substantial and significant time with each of their parents would be reasonably practicable due to the proximity of the parents’ place of residence to each other and to the children’s schools. However, as set out in the last paragraph, I do not consider it is in the children’s best interest to make an order that they spend substantial and significant time with each of their parents.
School for X
Pursuant to the interim orders made by consent between the parties on 31 January 2019, X has been attending B High School throughout the 2019 school year. X is engaged in playing competitive sports at both the club and representative levels. The father is very involved with X’s sports. On the evidence, he attends all of X’s trainings and games. B High School caters to X’s interest in and involvement in sports.
In the mother’s affidavit material, she presents material to suggest that it is damaging for X’s physical welfare to be engaged in one sport to the exclusion of others, and that overuse of his pitching arm can lead to permanent injury. The material so presented by the mother is of a general nature and there is no evidence of any weight that would lead me to find that X is suffering injury as a consequence of his engagement in playing sports, or that he will suffer long-term physical damage by continuing to play sports.
As outlined above, X indicated to the Family Consultant that he loves sports and wants to attend B High School throughout 2019, and that if he does not attend the school, all that he wishes would be to change to Suburb T High School.
Accordingly, I intend to make an interim order that X remain enrolled at and attending B High School unless X himself expresses the wish to both parents and the Independent Children’s Lawyer to change to Suburb T High School.
School for Y and Z
The father gives evidence in his most recent affidavit that since his move to reside at Suburb U, the distance between his home and C Public School is 2.6 kilometres.
The mother gives evidence in her latest affidavit that:
For the past 22 months, I have taken the children to Suburb C which is a 1 to 1.5 hour commute each way from my home on Suburb F which is a significant burden of travel for the children. I can work from home so the six hours I spent commuting each day is not ideal and is affecting my work.
Y indicated to the Family Consultant that he likes the school he currently attends and has some doubts about changing schools because he is settled in his current school.
Z also indicated that she likes her current school, but that she would be happy to change schools to D Public School because it is closer to home and because her best friend goes there.
Under the current orders from 2013, and even if same were changed as sought by the father to provide for overnight time with the children from Wednesday to Thursday each week during school term in place of Tuesday to Wednesday each week during school term, there would be six occasions per fortnight when the father would need to attend a changeover at the children’s schools; 3 to collect and 3 to return.
It is the father’s case that X should attend B High School. D Public School is geographically closer to B High School than to C Public School.
Under the current orders the children go to school from and return from school to the mother’s home on fourteen occasions per fortnight. D public school is significantly closer to the mother’s home then C Public School. The mother’s evidence in her most recent affidavit indicates that the children can travel from Suburb F by ferry to a wharf adjacent to D Public School.
At the wharf they are met by:
…school crossing guards, who accompany the children on the short walk to school.
On the mother’s evidence, this will enable the children to leave for school at 8:50am instead of 6:00am.
I am not inclined to disturb the children’s schooling for the balance of the 2019 school year and accordingly, I will make an interim order that Y and Z be enrolled in and attend D Public School from the commencement of the 2020 school year.
Y is in Year 5 in 2019 and so is not due to attend high school until 2021. The question of Y’s high school can be dealt with at final hearing if it has not been, as it should be, a matter of agreement between the parents by that time.
Accordingly, I make the orders as set out at the start of these reasons.
I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of Judge Morley
Date: 19 September 2019
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Family Law
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