Southey and Pitman

[2007] FamCA 303

FAMILY COURT OF AUSTRALIA

SOUTHEY & PITMAN [2007] FamCA 303

FAMILY LAW - CHILDREN – Final parenting orders

Family Law Act, 1975 (Cth)

HUSBAND: Mr Southey

WIFE: Ms Pitman

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 10088 Of 2000

DATE DELIVERED: 22 February 2007

PLACE DELIVERED: Albury

JUDGMENT OF: Brown J

HEARING DATE: 22 February 2007

REPRESENTATION

COUNSEL FOR THE HUSBAND: Mr Blackman

SOLICITOR FOR THE HUSBAND: Adams Leyland

COUNSEL FOR THE WIFE: Ms Dosanjh

SOLICITOR FOR THE WIFE: Hartleys Lawyers

INDEPENDENT CHILDREN’S LAWYER : Ms Wearne,  Legal Aid Commission of NSW

Orders

1. That all previous parenting orders in respect of the children, a daughter born in May, 1994 and a son born in April, 1997 be discharged.

1. That the husband and wife have equal shared parental responsibility for the children.

1. That the children live with the husband.

1. That the children spend time with the wife as follows :

   (a)during school terms, on each fourth weekend from 7:00 pm. Friday until 6:00 pm. Sunday :

   (i)to commence at 6:00 pm. on Friday 2 March (being on the weekend of 3 and 4 March, 2007) subject to any agreement between the parties to the contrary;  and

   (ii)to recommence on the second weekend of each school term;

(b)for the first ten days of each school term holiday, to commence at 10:00 am. on the first Saturday of the holiday period;

(c) for three weeks in the long summer holidays as agreed between the parties and failing agreement :

(i)in the second half in the 2007/2008 holiday period and each alternate year thereafter, from 6 January until the day before the recommencement of school;  and

(ii)in the first half in the 2008/2009 holiday period and each alternate year thereafter, from the first day of the holiday period until 6 January;

(d)at such other times as may be agreed between the parties.

1. That for the purpose of changeovers :

   (a)the husband deliver the children to the Service Station at E at the commencement of the children’s time with the wife, from which place the wife will collect the children;  and

   (b)the wife deliver the children to the Service Station at E at the conclusion of the children’s time with her, from which place the husband will collect the children.

1. That in the event the wife cannot spend time with the children on a weekend as a result of illness of a parent or child, then subject to any agreement to the contrary between the parties, the children spend time with her on the following weekend in lieu and each of the parties give as much notice as is practicable of any illness which may result in the wife not spending time with the children.

1. That the children have telephone communication with the wife as follows :

   (a)at any reasonable time requested by them, and the husband allow the children access to a telephone so that they may call the wife;  and

   (b)each Monday and Friday between the hours of 6:30 and 7:30 pm., the wife to telephone the children at the husband’s home and the husband do all things necessary to facilitate and encourage such telephone communication.

1. That as soon as practicable the parties notify the other in the case of any major medical issue or illness affecting the children and each of them.

1. That the husband continue to authorise the principals of the schools attended by the children from time to time to provide to the wife (at her expense, if any) information regarding the children’s progress at school, including copies of the children’s term and semester school reports.

1. That each of the parties be and are hereby restrained :

   (a)from consuming alcohol to excess at any time when the children or either of them are in that party’s care;  and

   (b)from denigrating the other party or any member of the other party’s family in the presence or hearing of the children or permitting any other person to do so;

   and the parties consent to the making of this order without admission of the necessity for it.

1. That pursuant to s.65L(1)(a) and (b) of the Family Law Act 1975 these parenting orders be supervised by a family consultant nominated by the director of mediation of the Albury Registry of the Family Court of Australia for a period of 12 months, and the parties co-operate with the family consultant appointed to assist them, including acceptance and follow-up of referrals to support services made by the family consultant, and such supervision be reportable in the event :

   (a)a party files another application;  and

   (b)the judicial officer before whom it is listed orders the preparation of a report.

1. That all extant applications be otherwise dismissed.

1. That these proceedings be removed from the List of matters awaiting finalisation.

1. That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, 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.

2. That the reasons for judgment this day be transcribed and copies made available to the parties.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and solicitors appearing as counsel.

AND THE COURT NOTES

1. That the husband and wife consent to the making of all orders save:

   (a)the specific hours of commencement and conclusion in paragraph (4)(a);

   (b)paragraph (4)(b);  and

   (c) paragraph (7).

1. That the independent children’s lawyer consents to the making of all orders save paragraph (4)(a).

1. That the parties acknowledge that as the children get older they may wish to attend holiday activities in the A area and both parties will work together to facilitate attendance at such activities  PROVIDED THAT  it does not substantially reduce the time spent between the children and their mother. 

FAMILY COURT OF AUSTRALIA AT ALBURY

FILE NUMBER: MLF 10088 of 2000

MR SOUTHEY

Husband

And

MS PITMAN

Wife

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter has a considerable history in this court and in the Federal Magistrates Court;   the file commenced in December 2000.  The parties have two children.  The daughter will be 13 in May, and the son will be 10 in April.  The parties were both baptised as Jehovah's Witnesses in late 1998.  A year later they separated.  The father remarried Ms A in 2004.  She has a son of an earlier relationship, R, who is four or five.  She and the father now have a son, L, who is one.

1. Shortly prior to the November sittings, it was discovered that Ms A was pregnant, and due to give birth in May 2007.  After L's birth she had experienced postnatal depression and her mental health status had deteriorated to the point she was on regular antidepressants.  When she ascertained she was pregnant, she had to cease those antidepressants, with consequent adverse effects on her mental health.  The mother, too, has had mental health problems, and an allegedly turbulent past.

1. Without traversing the whole of the litigation history, court orders made in 2001 provided for the children to live with their father and to spend alternate weekends and half holidays with their mother.  In 2004 there were some enforcement proceedings in the Federal Magistrates Court but they related to alleged breaches which did not relate to the specific times the children were to be with their mother.

1. The case was in Bennett J's circuit in September 2006.  Around that time the daughter alleged she had been assaulted by her step-mother.  That allegation led to involvement by the Department of Community Services.  At that time the daughter refused to return to her father's home in A.  Initially she stayed with his parents in Melbourne;  she then moved to live with her mother in Melbourne.  Interim orders of 1 September 2006 provided that the daughter live with her mother in Melbourne, and the son live with his father in A.

1. In material filed for the November circuit, the father conceded that his then wife was unable to cope with the daughter’s misbehaviour.  He thought it might be in his wife’s interests, and in his daughter’s interests, for them to have some time apart.  At that time Ms A told Ms D that if the daughter were made to return to them, she might run away.  The father's preference then was for the daughter to stay with his parents or, if she were with her mother, to spend alternate weekends with his parents in Melbourne, on the basis he would visit her there.  The daughter was comfortable with that, so long as her step-mother did not attend.

1. As it transpired, the father travelled to Melbourne only once to see the daughter between the August/September and November circuits of this court.  As agreed, the daughter had spent each alternate weekend with his parents, and half the September holidays.  Today I have been told that the daughter had a successful and happy time in A with her father and the son over the summer holiday period. 

1. The husband and his wife separated in early January;  her son R and their son L are no longer living in his home.  There is little point in speculating as to the relevance of that to the daughter’s enjoyment of the time with her father and brother.  But having enjoyed that period and returned briefly to Melbourne, the daughter then returned to A to live with her father and brother on the first weekend in February.  She started at A High a few days late and, I am told, has settled in well. 

1. In all, three family reports have been prepared by Ms D.  The first was for the initial proceedings in 2001.  A second was prepared for these proceedings, dated 6 July, 2006, and a third dated 19 September, 2006.  With some reluctance I ordered an update in November, 2006 but for good reason, that was not prepared.

1. With some prescience, Ms D noted in her September report that the daughter and her mother were going through a honeymoon period.  The mother had not faced any challenging or difficult behaviour, and her parenting had not been tested.  Ms D noted that that was particularly important, given that the daughter was in the early stages of adolescence.  The daughter has been a vulnerable child.  Consumed by unhappiness and frustration at events in her life, she admitted self-harming by cutting, something which is not only physically very damaging but reflective of a deal of emotional distress.  Greatly to the daughter’s credit, and to the credit of her parents, she felt able to move back to live with her father early this month and has settled in well.  That is indicative of the soundness of her relationship with her father;  it was strong enough to cope with a period of little contact between August/September and November 2006. 

1. Today I am told that the parents have agreed on parenting orders, which they seek to have made as final orders.  The independent children's lawyer has taken a responsible and, indeed, admirable stance, which is to put before the Court submissions as to the appropriateness of some of those orders.  That is the role of the independent children's lawyer and I am grateful to her for teasing out a number of important issues.

1. The parties have agreed that the children will live with the father and spend time with the mother.  The presumption of equal shared parental responsibility is to apply, and I will make an order in those terms.  If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the children's best interests and, if no such order is made, whether spending substantial and significant time with each parent would be in the children's best interests. 

1. No-one proposes equal time.  It is not practicable in these circumstances for geographical reasons and it would not be in the children's best interests.  The question then is how best to accommodate the children's need to spend significant time with their mother.  The independent children's lawyer supports them seeing their mother on each third weekend during school terms.  The parties themselves propose each fourth weekend.  The independent children's lawyer concedes that what is in issue is one weekend a term. 

1. The evidence of both parties is that the travel necessary between A and Melbourne imposes a financial burden.  The father complied with my direction to file a form 13 statement, the mother did not.  I have allowed a summary of her financial position to be put before the Court, without objection.  The mother is on a disability pension, receiving some $400 per fortnight.  The costs of travelling to E (about halfway) for the changeovers are significant.  She already has a debt to her parents.  She finds it humiliating to be always asking them for more money.  She has been assessed to pay minimal child support.  The father’s form 13 shows (unsurprisingly, given his responsibilities) that there is nothing left in his pocket at the end of the week, either.

1. It is easy for those not burdened by financial constraints to ignore the costs of travel.  But to people on very modest incomes, petrol and car maintenance costs can consume a significant part of those incomes.  That has the capacity to impact adversely on children in their care, as well as on the parents.

1. If financial constraints meant that the mother could not afford to travel to E on a third weekend, there could be a lengthy gap between two visits.  Equally importantly, the children would be disappointed in their expectations of seeing her on that third weekend. 

1. It should be said, from reading Ms D's reports and taking into account the independent children's lawyer’s advice of her conversations with the children, that the children would be very happy to see their mother every third weekend.  It was the daughter’s expressed preference.  I am confident her parents will have taken those views into account.

1. The independent children's lawyer spoke of the parents’ proposal as being focused on the parties' convenience, not the children’s. That may be an aspect, but I take each of them to be looking beyond that. A powerful argument in favour of making the orders they propose is that parents who have been at odds in this Court for a long time (and this has been a case of apparently intractable parental hostility) have come together to make a joint proposal to the Court. That is consistent with the objects and principles set out in s.60B of the Family Law Act 1975 which stress the importance of parents agreeing about future parenting and jointly sharing the duties and responsibilities concerning their children’s welfare. It is also likely to decrease the potential for further litigation. Importantly, it sends a strong signal to the children that their parents are cooperating in their welfare.

1. If orders provide for additional contact as agreed, the children can spend more weekends with their mother and I would encourage that, if it is possible.  Although I understand the basis of the independent children's lawyer's submission, I propose to order that the children spend time with the mother on each fourth weekend during school terms.

1. The parents then sought that the children spend the whole of each term holiday with the mother.  In one sense, that could make up for the fact that the tyranny of distance makes it hard for them to spend much time with her during school terms.  However, in my view there is sense in the submission of the independent children's lawyer.  Peer relationships are very important to adolescents.  Both of the children are getting older;  a trite observation, but true.  Friendships are always important to children but they are more important to teenagers.  To spend the whole of each term holiday away from their primary home is likely to give rise to a degree of frustration, and perhaps adversely affect some of their relationships with peers here.  And although L is young, they should be able to spend time with him and, in due course, with their father’s other child with his present wife. 

1. Again, orders can provide for the children to spend additional time with their mother, by agreement.  If the children want to spend extra days with her in a term holiday, they can.  What these orders will do is provide a minimum framework.  I propose holiday time commence at 10 am on the first Saturday of the holiday period.  The children will have time to come home from school, have a last night with dad, possibly see their siblings, the little ones, and then leave on the Saturday morning.

1. The parties and the independent children's lawyer are now in agreement about the summer holiday period.  They propose that it be shared.  The independent children's lawyer had initially proposed four weeks but she does not seek to argue against a splitting of that time.  I will adopt that division.  It may not be strictly half and half in each year but will balance out over the years.

1. There is then the question of telephone communication.  From many years of hearing these cases, I am aware of the difficulty of complying with orders that specify a time for a call.  Children often have other things on their minds.  They are watching television, or playing on the Internet, or talking to a friend.  They might love to talk to their mother and father, but not just at the specified time.  Nevertheless, the parties believe a framework is necessary. 

1. The orders proposed provide for phone communication at any reasonable time which the children request, and also at specific times.  In terms of the days, I propose Monday and Friday.  Thursday is a church meeting day for the father and children.  Earlier orders provided for a call between 4:30 and 5:30 pm.  In my view that is a little early for children of these ages, and particularly the daughter.  I propose that the calls be made between 6.30  7.30 pm.  Orders will provide for the husband do what he can to facilitate those phone calls.

1. If for reasons relating to the illness of a parent or child, the children cannot spend time with the mother on a scheduled weekend, and subject to any agreement to the contrary between the parties, the children will spend time with her on the following weekend, in lieu. An order will provide that the parties give each other notice of any such illness, or any emergency, as soon as practicable. The orders will be supervised for a period of 12 months, pursuant to s.65L of the Family Law Act 1975. The supervision will be reportable in the event another application is filed and the judicial office before whom it is listed seeks a report from the family consultant appointed to supervise. I stress that the family consultant will not initiate contact; he or she will be available to assist one or both parties in their attempts to implement the orders.

1. The mother proposed that the changeovers occur at 6:00 pm. on Friday and 5:00 pm. Sunday  The father proposed an hour later.  There is sense in the father's proposal and I do propose to make it 7.00 pm. on Friday.  The children will feel less rushed and they are old enough to cope with the travel at that time.

I certify that the preceding
25 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the          day of           2007.

…………………………………………
Associate.

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as SOUTHEY & PITMAN