Sellers and Burns (No. 2)

[2018] FamCA 1093

FAMILY COURT OF AUSTRALIA

SELLERS & BURNS (NO. 2) [2018] FamCA 1093

FAMILY LAW – CHILDREN – Interim parenting – Where the father is seeking orders in relation to school holiday time – where the father is seeking that the mother be restrained from leaving the children in the unsupervised care of the maternal aunt – where there are allegations of violence against the maternal aunt – where the children live with the mother and the maternal aunt – where the mother is the primary carer.

Family Law Act 1975 (Cth) s 68B

APPLICANT: Mr Sellers

RESPONDENT: Ms Burns

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: PAC 5854 of 2016

DATE DELIVERED: 18 December 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam

HEARING DATE: 10 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kenny

SOLICITOR FOR THE APPLICANT: Taperell Ruthledge Lawyers

COUNSEL FOR THE RESPONDENT: Mr Schonnel

SOLICITOR FOR THE RESPONDENT: Karras Partners Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Parramatta

Orders

1. That the children F born … 2010 and D born … 2013 (“the children”) live with the father during the 2018/2019 school holiday periods as follows:

2. That the children F born … 2010 and D born … 2013 (“the children”) live with the father during the 2018/2019 school holiday periods as follows:

   (a)       From 10am on 20 December 2018 to 10am on 24 December 2018;

   (b)       From 10am on 28 December 2018 to 10am on 4 January 2019;

   (c)       From 10am on 22 January 2019 to 6pm on 27 January 2019

3. That the children live with the mother during the 2018/2019 school holiday periods as follows:

   (a)       From 10am on 24 December to 10am on 28 December 2018;

   (b)       From 10am on 4 January 2019 to 10am on 22 January 2019;

4. The Father’s school term time with the children pursuant to orders made by the Family Court on 21 June 2017 shall re-commence Friday 8 February 2019.

5. In relation to order 6 of the orders of the 10 December 2018;

   (a)       Not less than five days prior to her departure, the Mother shall provide the father with a detailed itinerary for the children, such itinerary will include a copy of the children’s flight information for both the children and details of the accommodation at which the children will be staying with the mother from time to time during the holiday period;

   (b)       Not less than five days prior to her departure, the mother shall provide the father with a mobile telephone number that enables the father to contact the children at all reasonable times and with reasonable frequency.  For that purpose, the mother shall ensure that the mobile telephone is charged at all times whilst the mother is overseas with the children and shall ensure that the children are available to speak with the father when he contacts them, or otherwise return the father’s call within a reasonable time if the children were not available to speak to the father at the time of making the call.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sellers & Burns (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5854 of 2016

Mr Sellers

Applicant

And

Ms Burns

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parents of two young boys aged eight and five (“the children”) have been involved in an acrimonious dispute in relation to their parenting and also property matters for two years.

2. School holidays are about to begin and the mother wishes to take the children to the United States for a skiing holiday with her and a maternal aunt with whom the mother and children currently live.

3. The father initially opposed and then subsequently agreed to the mother’s plan to take the children overseas but disagreed about the length of the time that they would be away.  That aspect of the dispute was resolved by me at the completion of the hearing on 10 December 2018 with orders that the mother be permitted to travel with the children to the United States from 5 to 21 January 2019.  The parties agreed that it was not necessary for me to publish reasons in relation to that order.

4. The parties remain in dispute about the balance of time that the children are to spend with the father during the school holiday period and each of them and the Independent Children’s Lawyer (“the ICL”) propose slightly different orders in this regard.

5. The father also seeks an order restraining the mother from leaving the children in the sole or unsupervised care of the maternal aunt who he contends poses an unacceptable risk of harm to the children. His proposed order acknowledges that supervision by the mother is acceptable and thereby must accept that any alleged risk posed by the maternal aunt is mitigated to an acceptable level by such supervision.  The ICL agrees that it would be in the best interests of the children for a restraint in these terms to be made but such an order is opposed by the mother.

6. The father had also sought orders that the parties submit to screening in relation to drug use including hair testing for the mother only but this order was not pursued at the hearing.

Background

1. The parents separated in January 2016 following the breakdown of their seven year relationship.  Initially both of the parties and the children remained living in the family home but they physically separated in October 2016. After physical separation the children have remained primarily in the care of the mother and spend significant time with the father.

2. Pursuant to interim orders made in June 2017 the children live with the mother and spend time with the father four nights per fortnight during school terms.  These orders also provide for the father’s time in the school holidays during the year and relate to the Christmas school holidays last year which included an opportunity for the father to take the children overseas at that time.  No orders had been made in relation to the arrangements for the Christmas holidays in 2018/2019 until these competing applications were brought by the parties.

3. Since the beginning of this year the mother and the children have lived for some time with the mother’s sister (“the maternal aunt”).  Both the mother and maternal aunt work together.

4. On 3 August 2018 a complaint was made to police that on the previous evening the maternal aunt assaulted a lawyer at a social function when intoxicated.  In particular it is alleged that the maternal aunt grabbed the alleged victim by the throat and squeezed her throat for 3 to 4 seconds while pushing the victim up against a glass wall and screaming at her.  The maternal aunt has been charged with assault and is defending the charge.

5. The Christmas school holidays commence on Friday, 21 December 2018 and end on Monday, 28 January 2019.  The new school year begins on Tuesday, 29 January 2019.

The Application

The father’s time with the children during school holidays

1. The school holiday period consists of six weeks.  Each of the proposals of the parties result in the children spending almost equal time during that period in the care of each parent.  The only matter in real dispute is how each parent’s time is to be shared between them during this period.  To some extent the matter has been resolved as I have already made an order that the mother the permitted to travel with the children to the United States from 5 January to 22 January 2019.

2. The mother proposes to leave Australia on a morning flight on 5 January and return early in the morning of 21 January 2019.

3. The father’s proposal is for the children to be returned to the mother at 10am on 5 January, their departure date. Given that it is a morning flight I accept the submission put by the mother’s counsel that the father’s proposal would make such a departure impossible.

4. Both the proposed orders of the mother and the ICL are consistent with orders already made in that both propose that the children spend one night (4 January) in the mother’s care prior to the 5 January morning flight and both will see the children returning to their father’s care on 22 January 2019 the day following their return from the United States. However, the mother accepts that if the father wishes to have the children in his care sooner rather than later upon their return she will also agree to such an arrangement.

5. The most significant point of contention is that the orders proposed by the mother and ICL do not provide for the children to spend any time with the father on Christmas Day and will see the children living with the mother on the day the youngest child commences his first day at school.

6. Having regard to the extremely limited compass of this dispute which relates only to the way in which the children’s time with each parent during the school holiday periods is to be arranged the only matters to be considered under s60CC in determining the children’s best interests are the nature of the relationship of the children with each parent and other persons including the extended maternal and paternal families, the practical difficulty of the children spending time with each parent and the lifestyle and background including the traditions of the children and their parents.

7. In relation to the issue of the children’s time with their parents on Christmas Day which appears to be the nub of the father’s application, it is to be noted that in his affidavit he deposes that “[his] father routinely holds a Christmas lunch at the farm on 22 or 23 December in each year” and makes no reference to any particular traditions in his household associated with Christmas Day.  The mother deposes that when the family were intact they celebrated Christmas with her family either in Sydney or GG Town since the children were born.  She deposes that after separation the maternal aunt purchased a property near HH Town (in 2016) and since that time Christmas has been celebrated there.  She deposes that the children have always spent Christmas Day in her company and that the father’s family do not celebrate Christmas on Christmas Day but through the Christmas lunch at the paternal grandfather’s farm on 22 or 23 December each year. 

8. While the father does not provide any evidence in relation to New Year’s Eve the mother concedes that the paternal family have traditionally observed that event with a large celebration. 

9. The proposed orders of the mother and Independent Children’s Lawyer provide for the children to spend time with their father in accordance with the Christmas traditions in the paternal family, with the mother and maternal family in accordance with their traditions and with the father on New Year’s Eve which is an important day for him.

10. So far as practical difficulty is concerned I observe that the father’s proposal provides for a changeover in the children’s care on Christmas Day at 1pm, that is in the middle of the day on which the children will be celebrating Christmas with their maternal family at a location some hours from Sydney.  While the father’s evidence is that he lives between a property a short distance from the mother’s home in Sydney and his father’s farm north of Sydney it is not clear where he will be spending Christmas Day or where he proposes that changeover occur. It appears likely given his evidence about the two places where he lives that his proposal will involve the children spending at least a couple of hours in a car on Christmas Day.

11. The only other difference between the three proposals of significance goes to the end of the school holidays. The mother proposes that the children be returned to her care on 6pm on 27 January 2019 while both the father and the ICL propose that the children remain in the father’s care until the morning of 30 January 2019 and thereby allow for him to participate in the youngest child’s first day at school.

12. In my view although a child’s first day of school is important for both parents having regard to the acrimony between the parents and the conflict to which the children have been exposed it is in the child’s best interests to be settled in the home of his primary carer that is his mother on his first day of school.

13. The other differences between the orders proposed by the ICL and mother are insignificant. For the reasons given there are some advantages in my view to some orders proposed by the ICL and others proposed by the mother.

The restraint in relation to the maternal aunt

1. The father’s proposed order restraining the mother permitting the maternal aunt from having unsupervised contact with the children does not include in its terms the section pursuant to which it is made. It can be assumed however from the tenor of the application that it must be made pursuant to s68B of the Family Law Act (Cth) 1975. Accordingly the injunction may be granted if it appears to be just or convenient to do so.

2. The father’s application was pursued on the basis that the maternal aunt may conduct herself in a violent or aggressive manner which poses a risk of harm to the children.

3. However, it was not identified how the maternal aunt’s alleged behaviour towards another adult (who is not a family member and therefore does not constitute family violence) and which is not alleged to have occurred in the presence of any children poses a risk of harm in relation to these children.

4. Further, even if it could be said that such a risk of harm is posed by the maternal aunt it is difficult to see how the proposed restraint mitigates the risk. The restraint proposed is upon the mother from leaving the children unsupervised with the maternal aunt but the father accepts that supervision by the mother herself would be appropriate to mitigate that risk.

5. Further, it is common ground that the mother and children have been living with the maternal aunt for almost a year and the incident which allegedly raises the risk of harm occurred some months ago but the father has only recently considered that the risk is such that an order be sought restraining the mother from permitting contact in this way. In my view the father could have with reasonable diligence obtained information in relation to the event which resulted in the maternal aunt being charged through his own inquiries and brought an urgent application if he genuinely believed that she posed a risk of harm to the children as a result of this incident.

6. The circumstances in which the restraint was sought in the context of the father also seeking monitoring of alleged drug use by the mother which he did not ultimately proceed with and opposing the mother’s proposed travel with the children which he also ultimately agreed to casts doubt on the genuineness of his concern.

7. In any event in circumstances where the father clearly otherwise trusts the judgment of the mother who is the primary carer for the children I am not of the view that the restraint would operate to provide any greater protection to the children even if I were satisfied that it was required in the circumstances of this case. Accordingly the father’s application for an injunction is dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 18 December 2018.

Associate: 

Date:  18 December 2018