Skinner & Cluny (No. 2)

[2012] FamCA 465

FAMILY COURT OF AUSTRALIA

SKINNER & CLUNY (NO. 2) [2012] FamCA 465

FAMILY LAW - CHILDREN - With whom a child lives - Where the child is not yet three years of age and has always been in the Respondent Mother's primary care - Where parties agree on fundamental aspects of parenting Orders in child’s best interests - Where remaining issues between the parties on  parenting Orders to be made are at the periphery of any substantial or significant “best interests” considerations

Family Law Act 1975 (Cth)

Rice & Asplund (1979) FLC 90-725

APPLICANT: Mr Skinner

RESPONDENT: Ms Cluny

FILE NUMBER: BRC 812 of 2010

DATE DELIVERED: 21 June 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 27 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Carew

SOLICITOR FOR THE APPLICANT: Cooper Family Law

COUNSEL FOR THE RESPONDENT: Mr Hackett

SOLICITOR FOR THE RESPONDENT: Hirst & Co

Orders by Consent

1. B Skinner, born … August 2009 (“the child”) shall live with the Mother.

2. The Mother (Ms Cluny) and the Father (Mr Skinner) shall have equal shared parental responsibility for the child.

3. Each party shall notify the other as soon as practicable of any accident, emergency, serious illness or significant injury involving the child.

4. Each party shall keep the other informed at all other times of all professionals consulted in relation to the welfare, care, health, development and education of the child at all times, including, but not limited to, the particulars of the name, address and contact details of that professional.

5. Each party hereby irrevocably authorises any person or institution including, but not limited to, any doctor, carer, hospital, childcare institution, school, or sporting or recreational organisation to release all and any information reasonably requested by the other in relation to the child.

6. Each party shall keep the other informed of their residential address, home telephone number, mobile telephone number and e-mail address and shall notify the other in writing of any change to same within forty-eight (48) hours of any such change.

7. Neither party shall denigrate the other party or their extended family members, nor permit any person to do so, in the presence or hearing of the child.

8. The child shall spend time with and communicate with the Father at all times as may be agreed, but failing agreement, as follows, from the date of these Orders until 22 July 2012:

   (a)       every Monday from midday until 6.00 pm;

   (b)       every Thursday from midday until 6.00 pm; and

   (c)       every weekend from midday on Saturday until midday on Sunday.

9. The parties have liberty to attend upon, and participate in, any extra-educational activity undertaken by the child irrespective of any other Order.

10. The parties are restrained from causing any person to follow, survey, watch or engage in any other practice associated with private investigation upon the other party or any member of the other party’s family.

11. Both the Mother and the Father are restrained from bringing the child into direct or indirect contact with Mr R.

Further Orders

1. From 22 July 2012 until 25 May 2013, the child shall spend time with and communicate with the Father at all times as may be agreed, but failing agreement, as follows:

   (a)       every Thursday from midday until 6.00 pm; and

   (b)       each weekend from 9.00 am on Saturday until 4.30 pm on Sunday.

2. From 25 May 2013 until the child commences preparatory school in January 2014, the child shall spend the following time with the Father:

   (a)       As part of a two week cycle:

   (i)in week one, from Wednesday at 9.00 am until Friday at 9.00 am; and

   (ii)in week two, from 9.00 am Saturday until 4.30 pm on Sunday.

3. During the gazetted Christmas school holiday period in Queensland in 2013-2014, the child shall spend the following time with the Father, during which time the time otherwise ordered with the Father in Order 13 shall be suspended unless otherwise agreed by the parties:

   (a)       Three (3) separate blocks of three (3) nights each (commencing at 9.00am on the first day and ending at 4.30 pm on the fourth day);

   (b)       For the purposes of this Order 14, the Father shall provide the Mother with two weeks’ written notice of the three blocks of time the Father desires to spend with the child.

4. For the purposes of any time the child spends with the Father prior to the child commencing preparatory school in January 2014 and unless otherwise specifically ordered, the Father shall collect the child from the Mother’s residence (or another location if that is agreed by the parties) at the commencement of the time the Father is to spend with the child and the Mother, or her nominee, shall collect the child from the Father’s home at the end of the time the Father is to spend with the child.

5. Once the child commences preparatory school in January 2014, the child shall spend the following time with the Father:

   (a)       From the end of school each Wednesday until the commencement of school on Thursday, with the Father to collect and drop off the child from and to school;

   (b)       Each alternate weekend (commencing the second weekend of each school term from January 2014) from the end of school on Friday until 4.30 pm on Sunday, with the Father to collect the child from school at the commencement of the time and the Mother to collect the child from the Father’s residence at the conclusion of the time;

   (c)       During school holiday periods in 2014 (not including the Christmas holiday period in 2014-2015), the child shall spend five (5) consecutive nights with the Father in each holiday period as elected by the Father and as notified by the Father to the Mother in writing at least one (1) week prior to the commencement of the school holiday period;

   (d)       From the Christmas school holiday period in 2014-2015 onwards, the child shall spend the first half of each holiday period with the Father in even numbered years (including the Christmas holiday period commencing in the even-numbered year) and the second half of each holiday period with the Father in odd-numbered years (including the Christmas holiday period commencing in the odd-numbered year); and

   (i)For the purposes of Order 16(d), the Father shall collect the child either from school on the last day of the school term (if it is an even-numbered year) or from the Mother’s residence (if it is an odd-numbered year) at the commencement of the holiday time and either the Father shall drop the child off to school on the first day of the school term (if it is an odd-numbered year) or the Mother shall collect the child from the Father’s residence (if it is an even-numbered year).

6. Where the Father desires to change the time or the day he spends with the child:

   (a)       the Father must provide one week’s written notice to the Mother of his intention to so change the time or the day he spends with the child;

   (b)       the Father must nominate three options for make-up time within the following fourteen (14) days and the Mother must choose one (1) option within twenty-four (24) hours of the Father nominating the three (3) options.

7. The Father may only make a request as detailed in Order 17 six (6) times in any twelve (12) month period. A request to change either the time (by more than one hour) or the day or the time and the day of the time spent by the child with the Father constitutes one request for the purpose of this Order 18.

8. On Father’s Day, if the child is not otherwise in the Father’s care, the child is to spend from 9.00 am until 6.00 pm with the Father, with the Father to collect the child from the Mother’s residence at the commencement of the time and the Mother to collect the child from the Father’s residence at the conclusion of the time.

9. On Mother’s Day, if the child is not otherwise in the Mother’s care, the child is to spend from 9.00 am until 6.00 pm with the Mother, with the Mother to collect the child from the Father’s residence at the commencement of the time and the Father to collect the child from the Mother’s residence at the conclusion of the time.

10. On each of the Father and T’s birthday, if the child is not otherwise in the Father’s care, the child shall spend from 9.00 am until 6.00 pm (if either fall on a non-school day) or from after school until 7.00pm (if either fall on a school day) with the Father, with the Father to collect the child from the Mother’s residence (on a non-school day) or from school (on a school day) at the commencement of the time and the Mother to collect the child from the Father’s residence at the conclusion of the time.

11. On the Mother’s birthday, if the child is not otherwise in the Mother’s care, the child shall spend from 9.00 am until 6.00 pm (if it falls on a non-school day) or from after school until 7.00pm (if it falls on a school day) with the Mother, with the Mother to collect the child from the Father’s residence (on a non-school day) or from school (on a school day) at the commencement of the time and the Father to collect the child from the Mother’s residence at the conclusion of the time.

12. On the child’s birthday, the child shall spend time with the parent with whom the child is not then due to be spending time either from midday until 6.00 pm (on a non-school day) or from after school until 7.00 pm (on a school day), with the parent with whom the child is not due to be spending time to collect the child from either the other parent’s residence (on a non-school day) or from school (on a school day) at the commencement of the time and the parent with whom the child is due to be spending time to collect the child from the other parent’s residence at the conclusion of the time.

13. On Christmas Day, the child shall spend until 2.00pm on Christmas Day with the parent with whom they are otherwise due to spend time, and shall be collected by the other parent at 2.00pm on Christmas Day and returned by that other parent at 2.00 pm on Boxing Day.

14. Notwithstanding any other Order in these Orders, prior to the child commencing preparatory school in January 2014, the Mother be at liberty to take the child on two (2) holidays of a maximum two (2) weeks each in every calendar year, provided she gives the Father at least four (4) weeks’ written notice and provides the Father with three (3) options for make-up time for any time to be missed by the Father during those holiday periods.

15. The parties are restrained from causing any person to follow, survey, watch or engage in any other practice associate with private investigation upon the other party or any member of the other party’s family.

NOTATION:

The parties make no admissions that give rise to the making of any Order.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Skinner & Cluny (No. 2) 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 BRISBANE

FILE NUMBER: BRC 812 of 2010

Mr Skinner

Applicant

And

Ms Cluny

Respondent

REASONS FOR JUDGMENT

Introduction  

1. By application filed 28 January 2010, Mr Skinner, born in 1967 (“the Father”), sought, in addition to financial Orders which are yet to be heard and determined, parenting Orders regarding B Skinner, born in August 2009 (“the child”), who at that time resided, and continues to reside, with Ms Cluny, born in 1970 (“the Mother”).

2. By her Further Amended Response filed by leave, the Mother joined issue with the Orders sought by the Father.

3. With respect to parenting issues, the parties eventually reached agreement on almost all matters of substance with respect to parenting Orders in the child’s best interests.

4. Both parties agree that the child, now two and a half years of age, should continue to live primarily with his mother. Both parties agree that there should be an Order for equal shared parental responsibility. Both parties agree that the child should spend substantial and significant time with the Father.

5. However, the parties disagree on the detail of that time in terms of the exact days and times during which this should occur. The parties also disagree about whether final Orders made now ought incorporate any provision for review of the parenting Orders when the child commences preparatory school.  

Brief History

1. The parties met in or around 2006 and commenced cohabitation in either December 2007 (on the Mother’s case)[1] or May 2008 (on the Father’s case).[2] The parties married in October 2008 and the child was born on in August 2009. The parties separated less than a month later on 20 September 2009 and a decree of divorce regarding the parties’ marriage became absolute on in January 2011.

   [1] See paragraph 3 of the Mother’s affidavit filed 5 August 2011.

   [2] See paragraph 6 of the Father’s affidavit filed4 August 2011.

2. The Father has one other child from a previous marriage, T Skinner (“T”), who was born in October 2002 and is thus now nine years of age. There are presently no formal Orders concerning T, and the Father spends time with her on Thursdays and alternate weekends by agreement with T’s mother, Ms S. The Mother has no other children.

3. Neither party had repartnered as at the date of trial.

4. The Mother is qualified in the education field, but one who has not practised her profession since the end of 2007, when, the Mother deposes in her affidavit dated 5 August 2011, the Father requested that she instead travel with him on his frequent trips overseas. The Mother is presently a full-time mother supported by spousal maintenance and child support payments from the Father and resides in rented accommodation in Suburb W.

5. The Father has historically been the Chief Executive Officer of his transport industry business, I Company, which appears to have been a successful business venture albeit, the Father deposes, significantly affected by the Global Financial Crisis from 2008 onwards. The parties agree that the Father’s participation in this business has historically resulted in his having to travel frequently both interstate and overseas. However, the Father deposes in his affidavit filed 23 February 2011 that, as at that time, the Father was transitioning the management of his business so that he would no longer be an Executive Director of the company in order to free the Father up to spend more time with both T and the child. The Father deposes in that affidavit that he has appointed a new Chief Executive Officer for I Company; restructured the business so that he does not have responsibility for day-to-day decisions in the business; ceased his business mentoring activities; and decreased his attendance at conferences held by Business Organisation P (an organisation with which the parties agree the Father has historically been heavily involved). The Father further deposes in that same affidavit that his role will reduce to participating in weekly management meetings of two to three hours and quarterly strategic planning meetings lasting one day, as well as performing activities such as signing off on information to the Australian Securities and Investment Commission and the Australian Taxation Office in accordance with his duties as a non-executive director.

6. The Father deposes that this restructure has significantly decreased his previously substantial travel commitments. Exhibit 2 in these proceedings, a schedule of the Father’s travel in the preceding twelve months, supports that contention, evidencing an average of two trips per month, since the filing of that affidavit in February 2011, only three of which were international.

Approach

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) provides the statutory framework in which the Court exercises its power to make parenting Orders.

2. Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met, and details how those objectives are achieved.

3. Section 60CA of the Act provides that in deciding whether to make a particular parenting Order (defined in s 64B) in relation to a child, the Court must regard the best interests of the child as the paramount consideration. Section 60CC sets out the matters which may be conveniently described as the “best interests” considerations that are to be considered in determining the child’s best interests.

4. The inferences to be drawn from, and the conclusions made upon, the feature that the child’s parents agree upon the fundamental aspects of parenting Orders in his best interests (there being no evidence that their agreement is in any respect contrary to the child’s best interests) renders it unnecessary to undertake an expansive discussion of the evidence relevant to each of the best interests considerations.

5. Moreover, where a parenting Order provides or is to provide for equal shared parental responsibility, as is proposed here, s 65DAA(1) requires consideration of whether the child spending equal time with each of the parents would be in the best interests of the child. In circumstances where the parties have agreed to the making of an Order for equal shared parental responsibility and for the child to spend substantial and significant, rather than equal, time with the Father, no detailed further consideration of an equal time Order is necessary.

6. Resolution of the remaining issues between the parties, albeit having regard to the best interests considerations, comes against the background of the parties’ agreement as referred to and the effect of that agreement in terms of the inferences and conclusions on best interests considerations that follow from such agreement.

Issues in Dispute

1. As noted earlier, the issues in dispute between these parties are minimal. There is largely no contention between the parties as to their ability to care for the child and provide for all of his needs. The only significant substantive disagreement between the parties appears to concern their respective parenting styles. As Mr F, social worker, identified in the Family Report filed on 3 May 2011, the Mother appears to have adopted an “attachment” style of parenting, as opposed to the Father’s more independent approach. Examples of disputes between the parties include the Father’s assertion that the child should be toilet trained at two and a half years of age, while the Mother asserts that this should not be the case, and the Father’s assertion that the child should sleep in his own bed and self-soothe, whereas the Mother asserts that the child sleeps better in a bed with her and that he should be comforted when upset.

2. None of those disagreements mentioned above affect either party’s ability to parent the child effectively. There is no evidence that would support a conclusion to the effect that the child’s best interests are compromised by the experience of the differences between his parents, including in respect of their parenting styles. None of the issues raised by either party appear to constitute significant barriers to their successful co-parenting of the child.

3. By final submissions, the parties agreed upon the times the child should spend with the Father during the first three months following these Orders.

4. The parties disagreed with the structure of the next three months, with the Father submitting that the child should spend Wednesday 9.00 am to Friday 9.00 am in one week and Saturday 6.00 pm until Sunday 6.00 pm in the other week on an alternating basis, and the Mother submitting that the time should instead be structured as one six hour period and one overnight each week (although on different days each week). Mr F, the report writer, recommended, pursuant to the Mother’s suggestion, that the child spend time with the Father from 9.00 am on one day to 4.30 pm the next day as well as one other daytime period each week; however, Mr F makes clear in his report that:

   … A suggested structure is as follows but it is not intended to be prescriptive. The key principals for the proposed structure emphasise frequency over intensity in the first years of life. …

1. Given Mr F’s emphasis on frequency over duration, and given the child’s tender age, I find that something along the lines of the Mother’s proposal are more in line with the appropriate time the child should be spending with the Father. However, I have changed the days of the week proposed by the Mother to provide the child with both consistency and the opportunity of spending time with the Father while T, the child’s half-sibling, is also in the Father’s care. To that end, I have made an Order that the child spend time for the second three month block discussed by the parties on each Thursday from midday to 6pm and from each Saturday at 9.00 am until Sunday at 4.30 pm. The parties also contest as to how long this schedule should continue. The Father suggests until August 2013 (when the child turns four), whereas the Mother suggests it until 25 May 2013 (when the child is three years and nine months). In the absence of better evidence, I will follow Mr F’s suggestion that this time period continue until 25 May 2013, when the child turns three years and nine months.

2. The second issue in dispute is what time the child should spend with the Father from the end of that period until the time at which the child commences preparatory school in about January 2014. The Father suggests Wednesday to Friday each week and Saturday to Sunday in alternate weeks while the Mother suggests Friday to Sunday on one week and Thursday to Friday in the alternate week. Mr F suggested in his report, in accordance with the suggestion of the Mother, that the child spend time with the Father on one night in one week and for two nights in the alternate week. I find that the Father’s suggestion may in fact be unnecessarily disruptive to the child, as it would require, each alternate week, for the child to go to the Father’s home from Wednesday to Friday morning, go home, then return to the Father’s home on Saturday morning. However, if the Father’s proposal were altered to be from Wednesday until Friday in one week and from Saturday until Sunday in the alternate week, and the times were amended to reflect earlier periods spent by the child with the Father, I find that such a structure would be in the child’s best interests as it would be more consistent with the earlier blocks of time spent by the child with the Father as detailed in the Orders made at the commencement of these reasons, aiding with the consistency which is beneficial for children of the child’s age.

3. The next issue is as to whether the child commences preparatory school in either 2014 or 2015. Given that children in Queensland generally commence preparatory school in the year they turn five years of age, the child should commence preparatory school in January of 2014, and I make the Orders otherwise agreed upon by the parties regarding block periods of time with the Father in the Christmas school holiday period leading up to that time.

4. The next issue is whether or not the Mother’s picking up of the child at the end of each time period he spends with the Father should be made conditional upon the Mother’s possession of a vehicle. I note that the parties are separately engaged in property proceedings which were adjourned and are to be heard separately from these parenting proceedings. Part of those property proceedings involves a dispute about the Mother’s continued possession of the parties’ Land Rover vehicle for the purposes of transporting the children, and the Mother deposes that she will only agree to collect the child if she continues to have possession of that vehicle.

5. However, given that the parties live a not insignificant distance apart (the Mother presently residing in Suburb W, an eastern suburb and the Father in Suburb L, an inner suburb), I find that requiring the Father to transport the child in both directions, particularly where some of the periods the Father is to spend with the child are as short as six hours, would be unfairly restrictive. The Mother has the support of her parents, with whom she lived for a period following her separation from the Father, and I have made provision in the Orders for the Mother to be able to nominate another person to collect the child should she desire to do so. I cannot predict or prejudge the outcome of the property proceedings, but it would seem likely that the Mother’s property settlement is likely to provide her with the funds for at least a modest vehicle for the purposes of transporting the child from the Father’s house to the Mother’s residence. I am also hesitant to insert the proviso, “…provided the Mother has a vehicle to do so…” into the Order given that that provides the Mother with the ability to legitimately refuse to collect the child by simply failing to purchase or obtain the use of a vehicle.

6. Another contention between the parties is whether there needs to be a limit on the Father’s ability to change the times he is to spend with the child. The Father proposes, and the Mother opposes (strangely, given that it is her complaint throughout her material that the Father excessively changes the times he is to spend with the child) that the Father only be permitted to request make-up time on six occasions in each twelve month period and that when such a request is made, the Father provide the Mother with three options, from which the Mother may choose one. The Father obviously has commitments with his work, whilst the Mother is not working. The importance for the child is to spend time with the Father. Unforeseen circumstances may dictate the need for some change from time to time in set times. I consider that the Father’s proposal best serves the child’s best interests and I propose to make an Order consistent with the Father’s proposal in this respect.

7. The final significant area of dispute between the parties is how the time the child should spend with the Father from the time he commences preparatory school should be ordered. The Father submits that an Order ought be made for the parties to attend family dispute resolution six months prior to the child attending formal schooling in an attempt to reach agreement and, should no agreement be reached, then request Mr F (or another family report writer as agreed) to prepare a report with recommendations as to the best course for the child. In the alternative, he proposes a series of Orders, the substance of which is largely undisputed by the Mother. All the parties appear to be unable to agree upon is the exact times and dates during which the time will happen, as well as the exact duration of holiday and “special day” time with the Father.

8. In the absence of any other evidence as to why either proposal is better than the other in terms of the child’s best interests, I make Orders in accordance with the structure suggested by Mr F in a manner so as to reduce personal contact between the parties (given the animosity evident between two parties who cannot agree on the smallest of details) and so as to maintain a degree of consistency for the child.

9. The amounts of money each party has expended on legal costs to date, albeit mainly in respect of financial issues, is nothing short of extraordinary. There is much to be said for the child’s best interests being served by final Orders without any built-in “review” mechanism in order to preserve, in the child’s best interests, funds that would otherwise be available for his benefit from being consumed in yet further legal costs in the future.

10. Balanced against that, is the fact that the child is yet to turn three years of age, and changes in the parties’ circumstances and, more particularly, the child’s changing needs as he develops, may lead to a need for there to be reconsideration of parenting Orders which are in his best interests.

11. Of course, parenting Orders are never truly final in that the Court always retains jurisdiction; although it is true that the Court will not readily re-open parenting Orders recently made. However, relevant authorities such as Rice & Asplund (1979) FLC 90-725[3] make it clear that a Court, receiving a fresh application, should have regard to any earlier Order and for the reasons for it. There is also plain recognition of the significance of changed circumstances.

    [3] See, also, Langham & Langham (1981) FLC 91-014; Zabaneah &Zabaneah (1986) FLC 91-766; and Newling & Mole (1987) FLC 91-856.

12. Here, I make it plain that my conclusion that it is in the child’s best interests that there be final Orders, places some emphasis upon the consideration expressed in s 60CC(3)(l), having regard also to the enormous amounts of money these parties have expended on legal costs to date (with more to come in the near future in respect of the property proceedings) and the need to avoid, as far as possible in the child’s best interests, yet further litigation.

13. In those circumstances, I decline to order, at this time, that the parties compulsorily attend family dispute resolution some years hence. Of course, in advance of any further parenting application in the future, that may occur in any event.

14. I record that such a conclusion is reached with some hesitation given the child’s tender age, but I am mindful that a substantial change in circumstances may be more readily demonstrated at some future time with respect to this case, given that this decision comes when the child is not yet three years of age.

15. Aside from that aspect, I have also endeavoured to ensure that these Orders ensure that the child is able to spend as much time as possible in the Father’s care at the times during which T is also in the Father’s care, namely on Thursdays and alternate weekends.

16. I therefore make Orders as set out at the commencement of these reasons.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 21 June 2012.

Associate: 

Date:  21 June 2012