SIROTA & SIROTA

[2014] FamCA 1235

FAMILY COURT OF AUSTRALIA

SIROTA & SIROTA [2014] FamCA 1235

FAMILY LAW – CHILDREN – Interim Consent Orders – With whom a child lives – With whom a child spends time – With whom a child communicates - Injunctive Orders

Family Law Act 1975 (Cth)

APPLICANT: Ms Sirota

RESPONDENT: Mr Sirota

FILE NUMBER: SYC 5052 of 2014

DATE DELIVERED: 15 December 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Benjamin J

HEARING DATE: 15 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Livingston

SOLICITOR FOR THE APPLICANT: Tsolakis Solicitors

COUNSEL FOR THE RESPONDENT: Mr Dura

SOLICITOR FOR THE RESPONDENT: Karras Partners Lawyers

Orders

1. Orders be made in terms of Exhibit “1” with the variation to order 1.3.3 and in terms of Exhibit “2”, orders 1.3.7 and 1.3.8 be deleted and these orders will operate until further order.

2. The consent orders made by this Court in September 2014 be discharged.

3. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS DIRECTED

1. A copy of the reasons for these orders be taken out and placed on the court file.

2. The solicitor for the father forward to my associate within one (1) business day an electronic word version of Exhibit “1” and Exhibit “2”.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

Exhibit “1”

1. The children of the marriage, [B] born … 2005 and [C] born on … 2007 (“the children”), shall live with the wife save and except for the following periods when they will live with the husband:

   1.1During school term time:

   1.1.1In week one of a fortnightly cycle, from immediately after school on Friday (or 3:00 pm if such day is not a school day), until 7:40 am the following Saturday morning, or 8:10 am in the event that the children are taken to [C’s] cricket fixture at [Suburb D] (at the election of the husband).

   1.1.2In week two of the fortnightly cycle, from 4:00 pm on Saturday until 9:00 am on Sunday or 9:30 am in the event that the children are taken to swimming classes at [E Pool] at [Suburb F] (at the election of the husband).

   1.1.3On every Tuesday evening from immediately after school until the commencement of school the following morning.

   1.2During the children’s school holiday period:

   1.2.1In week one of a fortnightly cycle, from 3:00 pm on Friday until 8:00 am the following Saturday morning, or 8:30 am in the event that the children are taken to [C’s] cricket fixture at [Suburb D] (at the election of the husband).

   1.2.2In week two of the fortnightly cycle, from 4:00 pm on Saturday until 9:00 am on Sunday or 9:30 am in the event that the children are taken to swimming classes at [E Pool] at [Suburb F] (at the election of the husband).

   1.2.3On every Tuesday evening from 4.00 pm until 4:00 pm the following day when the wife shall deliver the children to the husband’s home and the husband to cause them to be returned to her home.

   1.3For the purpose of … religious holidays, as follows:

   1.3.1For the first night of … (…).

   1.3.2For the first night of … (… New Year).

   1.3.3For … with the husband:-

   1.3.3.116 December 2014 from 4:00pm to 4:00pm the 17 December 2014.

   1.3.3.219 December 2014 from 4:00pm until 4:00pm on 20 December      2014.

   1.3.3.322 December 2014 from 5:30pm until 2:00pm on 23 December      2014.

   and the husband’s time to be suspended from 23 December 2014 until 10:00am 29 December 2014.

   1.3.4From after school to 8:00pm on .

   1.3.5For the second day of ....

   1.3.6For the holiday of ....

   1.4For the purposes of Father’s Day, from 6:00 pm on the preceding Saturday until 6:00 pm on Father’s Day.

   1.5On the occasion of the husband’s birthday, between 3:30 pm and 6:30 pm if such day falls on a weekday or from 9:00 am to 5:00 pm if such day falls on a weekend.

   1.6On the occasion of each of the children’s birthdays, between 3:30 pm and 6:30 pm if such day falls on a weekday or from 1:00 pm to 6:00 pm if such day falls on a weekend.

   Provided that during such times the husband and the children remain in the company of the husband’s sister, Ms G, or the husband’s mother, Ms H Sirota.

2. In the event that Mother’s Day falls during a period when the children are to spend time with the husband in accordance with these Orders, the husband’s time with the children is suspended as from 6:00 pm on the preceding Saturday until 6:00 pm on Sunday.

3. The parties are at liberty to attend all school events and extra-curricular activities that the children may from time-to-time attend.

4. The parties have liberal telephone communication with the children whilst in the other party’s care.

5. The parties will encourage and facilitate at all reasonable times, the children’s communication with their maternal and paternal grandparents whilst the children are in that party’s care.

6. Each party is to inform the other party as soon as is practicable, of any medical illness or injury suffered by the children whilst the children are in that party’s care, whether serious or otherwise.

7. The parties are restrained from applying to the Australian Department of Foreign Affairs and Border Protection for an Australian Passport in the children’s names without the written consent of the other party or by further Order of the Court.

8. Each party keep the other party informed of their current residential address and any other address that the children will be from time-to-time residing and an address for the purposes of communicating in respect to the child.

9. All communications between the parties in respect to the children be communicated by telephone, text message or email.

10. The parties are restrained from denigrating the other party in the presence of the children.

11. The husband shall forthwith notify the wife of any material deterioration to his health.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sirota & Sirota has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5052 of 2014

Ms Sirota

Applicant

And

Mr Sirota

Respondent

REASONS FOR JUDGMENT

1. There are proceedings between Ms Sirota (‘the mother’) and Mr Sirota (‘the father’) relating to a number of matters, but in particular the parenting of their two children, B, born in 2005, aged nine, and C, born in 2007, aged seven (‘collectively the children’).

2. The parties’ interim parenting application came before Johnson J on 15 September 2014.  His Honour made a series of consent orders which were effective until today and the proceedings were stood over until today.  The parties have, since that time, managed those orders and have resolved a number of parenting aspects in issue between them.

3. Tendered as an aide memoire was a minute of the order sought by the father, which I will call Exhibit 1.  From that document the parties agreed a number of matters, including time between the children and the father for various Jewish religious holidays set out in orders 1.3.1, 2, 3, 4, 5 and 6, 1.3 having been agreed in terms of Exhibit 2.

4. The parties also agreed to some arrangements regarding Mothers Day and what was left to be determined today were three substantive issues. 

5. The first as to whether the children are returned on Tuesday evening to the mother or are taken to school by the father, in the company of a member of his family, the following day. 

6. The second relates to two particular religious events, being those set out in orders 1.3.7 and 1.3.8. 

7. Finally, the father seeks to have his mother included as a person to remain in his company, as well as his sister.

8. The mother was born in 1980 and is aged 34.  The father was born in November 1965 and is aged 49.  It is asserted that the parties commenced cohabitation in 2002, that they were married in 2005 and separated in 2013.

9. The issue which I have to address relates to the father’s health.  It is not in issue that the father has serious health issues, although the father’s case is that he is managing those issues particularly well and says it does not impact upon his ability to care for the children to the extent that he now seeks.

10. The mother’s case is that the father’s health is significantly compromised and he needs assistance in the care of the children or, at least, somebody to monitor his health.  She has expressed a concern that the children could be struggling with the emotional aspects of the father’s health and could be struggling in terms of the father, in case he has some event, which would leave them emotionally and perhaps, in a broader way, at risk.

11. The material upon which the father relies is that contained in Exhibits 1 and 2 to which I have referred earlier, his affidavit of 15 December 2014 at paragraphs 1 to 37 and his affidavit of 11 September 2014.  He also relies on affidavits of his sister Ms G[1] and a Dr I.[2]  Dr I is not his specialist treating doctor.

    [1] Filed 11 September 2014.

    [2] Filed 12 September 2014.

12. The mother relies upon her affidavit of 12 August 2014, paragraphs 1 to 175, and her affidavit of 12 December 2014.  Her counsel assisted by preparing written submissions dated 15 December 2014.  The significant aspects of parenting are not in issue, that is, the children will remain in the primary care of the mother.  The arrangements in terms of parental responsibility are not sought to be changed.  It is those three points which I have alluded to earlier.

13. Of course, this being an interim matter, I have to have regard to the evidence but I do not make any finding of fact where there is contention involved.  I also invite counsel if, in giving these oral reasons, I make a clear error of what I understand the facts or agreed facts to be, to interrupt me so that at least I can have that straightened up in my reasons and also my mind at the same time.

14. The first issue, and as such, I am not sure that I need to go through the detail of any provision of s 60 and 60CC(2) and (3), as I would normally do so in the form of some form of Gregorian chant, because the issues are so narrow and so particular, it serves little impact.

15. Both parties, to their credit, agree that it is important that the children have a meaningful relationship with the father.  It is how that can be achieved in those narrow senses to which I refer. 

16. The mother’s concerns for the children may fit into the s 60CC(2)(b) aspect in terms of her concerns about the father’s health and, in many ways, when one looks at the structure of the orders that were put in place in September this year, they were designed to provide almost a ‘belt and braces’ approach.

17. One is to provide time on a limited basis to enable the father to have a relationship with the children and vice versa, but also to have someone present in case there was an issue with his health.

18. In terms of the holidays referred to in orders 1.3.7 and 1.3.8, the submissions on the part of the mother are that there was, essentially, no evidence in respect of those concerns or no meaningful evidence in relation to those concerns and, that, therefore, in the context of the determination that I have to make I am bereft of that material to make the determination as sought by the father, and in all of the circumstances it ought not be made.  I generally accept that submission.

19. In relation to the inclusion of the father’s mother as a companion, the mother’s concern is her age, her own physical abilities and her responsibility to care for the children’s paternal grandfather and the fact that the paternal grandmother does not have a driver’s licence. 

20. Given the light touch that applies in relation to the companion, it seems to me that the whole thrust of the need of someone present; it is not as a supervisor in the traditional sense, but as somebody there, as I indicated earlier, in the belt and braces type approach.  Whilst the father’s mother may be aged 77 and there may be some conflict between the paternal grandmother and the mother, it appears, at least on the mother’s evidence, that they are able to communicate and work together from time to time, and that some of their interactions has been less than positive but others have been better.

21. Given that material and that evidence, I am not satisfied that limiting the person to keep the father company to the father’s sister is necessarily in the best interests of the children when somebody else who can do that task is also available and, as such, I will be making that order by including those words.

22. The final issue is in relation to whether the father’s time with the children finishes on a Tuesday evening or the following morning.  The submissions made on behalf of the mother fell into a number of areas.  Firstly, into the specific in regards to homework and getting the children to school, to the broader issues as to the mother’s flexibility, and the mother has been flexible and perhaps that has shown at some levels in the approach she adopted today, and her concerns about the father’s health.

23. I see, in the circumstances of this case, where the children are already spending some overnight time when there is someone present, little difference in a late return on a Tuesday evening or an after school or a commencement of school the following day.  Clearly, if the children are to be taken to school by car, the father’s sister will need to be there, or some other driver, with the father’s mother present.  It, as I said, provides little forensic material for me to make the determination but, such as there is, I will be extending that time until the commencement of school the following morning.

24. With those limited reasons in the matter of Sirota, I make orders in terms of Exhibit 1, with the variation to order 1.3.3 in terms of Exhibit 2.  I delete orders 1.3.7 and 1.3.8 and these orders will operate until further order, and I discharge the consent orders made by this court in September of 2014. 

25. I direct that my reasons are to be taken out and placed on the court file and I certify for counsel.

26. I direct that the solicitor for the father forward to my administrative associate within one day an electronic version of Exhibit 1 and Exhibit 2 in Word format.

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 15 December 2014.

Associate:     

Date:              15 December 2014