Spagnolo and Morgano

[2015] FamCA 1178

FAMILY COURT OF AUSTRALIA

SPAGNOLO & MORGANO [2015] FamCA 1178

FAMILY LAW – CHILDREN – INTERIM PARENTING – Equal shared parental responsibility – The time the children live with each parent.

APPLICANT: Ms Spagnolo

RESPONDENT: Mr Morgano

FILE NUMBER: SYC 4933 of 2015

DATE DELIVERED: 10 December 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 30 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lawson

SOLICITOR FOR THE APPLICANT: Broun Abrams Burreket Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Harper

SOLICITOR FOR THE RESPONDENT: Kyle Family Lawyers

Orders

Pending Further Order:

1.The parents have equal shared responsibility for the children;

a)S born … 2002

b)T born … 2006

c)N born … 2009 (N and T together “the boys”)

2.   The children live with each of the parents as set out in these orders.

3.   The children live with the father as follows:

T and N: During school term.

a) Week 1: After school Thursday until before school Friday.

b) Week 2: After school Monday until before school Tuesday and after school Thursday until before school Monday.

c) Such other time as the parents agree upon in writing (exchange of emails or text messages sufficient).

S:

a) Week 1: After school Thursday until before school Friday.

b) Week 2: After school Monday until before school Tuesday and after school Thursday until 6 pm on Sunday.

c) Such other time as the parents agree upon in writing (exchange of emails or text messages sufficient).

4.   The children live with the father during school holidays as follows:

a)   For holidays at the end of terms 1,2,3

I.For the first half in even numbered years and the second half in odd numbered years

II.The first half shall commence at the conclusion of school (being the last day that one of the children is required to attend school)

III.Changeover in the middle shall be at 9 am on the middle Saturday; and

IV.The second half of the holidays shall conclude before school on the first day that any of the children are required to attend school

b)     For the Christmas school holiday periods, unless otherwise agreed for half of each such period, and unless otherwise agreed, for the first half in even numbered years and the second half in odd numbered years

1. That the children live with the father from 6 pm Friday until before school Monday on the father’s day weekend, if they are not otherwise in his care on such occasion pursuant to these orders.

2. That the children live with the father from 6 pm to 7.30 pm on each of their birthdays (save for S’s birthday in 2015) if it is a school day and from 12 noon until 3 pm if it is a non-school day, if the children are not ordinarily spending time with their father.

3. If it is not a day the children ordinarily live with the wife pursuant to these orders then they will also live with her:

   a)   6 pm until 7.30 pm on each of the children’s birthdays if it is a school day or from 12 noon until 3 pm if it is a non-school day.

   b)     6 pm Friday until before school on Monday on the Mother’s day weekend.

   8.   For the purpose of implementing these orders if changeover:

   I.Is to happen before school it shall happen at school and otherwise, 9 am at the home of the mother.

   II.Is to happen after school if it is a school day, it shall happen at school and otherwise 4 pm at the home of the father.

   9.   Each parent may communicate with the children at any reasonable time and both parents are to facilitate such communication.

   10. Each parent shall keep the other informed of his/her residential address, email address and telephone number.

   11. Each parent shall keep the other informed of any illness or injury experienced by any of the children in that parent’s care.

   12. Each parent shall be and is hereby restrained from:

   a)   denigrating the other parent within the presence or hearing of any of the children.

   b)     discussing these proceedings with any of the children or in their presence or hearing.

   c)     making arrangements for any of the children which may impact on a child’s day to day arrangements while in the care of the other parent without prior consultation with and consent obtained from the other parent.

   d)     physically chastising any of the children.

   e)     Removing any of the children from Australia without the prior written consent of the other parent or further order of the Court.

   f)   Causing any of the children to attend a mental health practitioner or medical specialist for assessment or therapy without the prior consent of the other parent. This injunction will not prevent such an event should a child require emergency medical care.

   13. Each parent has liberty to apply for further interim orders, should such application prove necessary, upon 48 hours’ notice to the court and the other party.

   IT IS NOTED that publication of this judgment by this Court under the pseudonym Spagnolo & Morgano 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 4933 of 2015

Ms Spagnolo

Applicant

And

Mr Morgano

Respondent

REASONS FOR JUDGMENT

Introduction

1.Ms Spagnolo (the mother) and Mr Morgano (the father) are the parents of S, born in 2002, T, born in 2006, and N, born in 2009 (T and N together “the boys”).

2.The parents have largely agreed upon how their children should be cared for by them as an interim arrangement however there remain some disputes which I will identify herein and determine for the time being.

Background Facts

3.Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.

4.The mother was born in Italy in 1971. The father was born in 1972 in France.

5.The parties were married in 2001 having previously shared a domestic relationship.

6.The parties’ children were born on the dates set out above.

7.The parties’ separation occurred in about December 2013.

8.The parties have been able to make arrangements for the care of the children without the necessity of court imposed orders until this time.

9.On 14 October 2015 the parties met with Family Consultant Ms K. The Family Consultant provided a Child Responsive Program Memorandum dated 30 November 2016. The parties are largely in agreement with the recommendations made in that report.

10.This matter was heard in a Duty List and the time each party had available to make submissions was very limited. In the result neither party addressed the specific provisions of section 60CC of the Act and no criticism is intended by that statement.

11.In the Child Responsive Program Memorandum the Family Consultant identified the issues which emerged for her as:

What the medium to longer parenting arrangements ought to be and whether or not [S’s] parenting arrangements ought to be different to those of [the boys]. Whether or not all, or any of the children ought to attend counselling for either psychological or behavioural assistance and if so, which professionals and/or services ought they attend.

The Issues

12.The parties identified the issues at the commencement of the hearing as follows:

·Equal shared parental responsibility or as provided by the Family Law Act;

·Whether the orders are framed as “live with” each parent or “spend time” with the father;

·The amount of time S spends with the father; and

·The terms of an injunction.

Evidence

13.The parties each relied upon affidavit evidence and documents tendered. The mother read her affidavits filed 28 July 2015 and 20 November 2015. The father read his affidavits filed 23 August 2015 and 27 November 2015.

14.The father tendered tagged documents produced under subpoena by Ms M and also documents from Dr F.

15.The evidence which is probably of the most assistance is found in the Family Consultant’s report.

16.The mother is a professional, self-employed and works from home. She lives in the former matrimonial home. The father is in rented accommodation situated nearby the former matrimonial home. He may have to move soon however he will be looking for accommodation in the same area.

17.The father is a managing director of an enterprise and that job entails overseas travel on two to three occasions each year.

18.Currently the children live in an equal time arrangement between the parents.

19.The oldest child attends the Z School and is completing year 7. She told the Family Consultant she wished to spend more time with her mother. She raised a concern that her father was not listening to her. She is uncommitted at this time as to the regime of time she wishes to share between her parents outside of a clear wish to spend more time with the mother.

20.The father has a relationship with Ms L, however, they do not live together. The mother told the Family Consultant she has recently commenced seeing another, however, they do not share a residence.

21.The evidence contained in the parents’ affidavits and in the Family Consultant report suggests there is sometimes tension between the oldest child and the father which appears to be associated with parental control or discipline.

22.The boys both attend R Primary School.

23.The Family Consultant reports each child presented as confident and articulate. The boys did not show signs of being significantly affected by parental conflict. Further, the Family Consultant reports each parent has different views of each child’s emotional and behavioural needs.

24.The mother told the Family Consultant of behaviour on the part of the father which has been directed to her and, if true, is an example of family violence as defined by the Act. The father denied all the mother’s allegations.

25.The father, for his part, told the Family Consultant that the mother displayed a range of behaviours which, if true, may be family violence and/or emotionally abusive of the children.

26.Both parents agreed that the children had been exposed to the parental conflict.

27.In her “Evaluation” the Family Consultant stated that it would be important for future positive relationships between the oldest child and each parent that the parents endeavour to accommodate some of her wishes.

28.The Family Consultant recommended that on an interim basis the parents should make some minor changes to the parenting arrangements for the oldest child which will accommodate her wish to spend more time with her mother.

Submissions

29.The father presses for an order that there be equal shared parental responsibility. It is submitted that the parties have conducted themselves largely in accordance with the provisions of the Act relating to parental responsibility. Now that the matter requires the attention of the court there does not appear to be any significant fact which would prevent such an order being made pending further order. I agree with this submission.

30.The father also seeks that the interim orders of the court use the terms “live with” rather than “spend time with”. This difference to some extent is semantic, however, experience shows that the difference can carry a significant emotional consequence and that at this time should be avoided if possible. I will therefore express the interim parenting orders in the “live with” terminology.

31.The father seeks an injunction as specified in paragraph 8(d) of exhibit H1 being his minute of order. That injunction seeks restraint on each parent from causing any of the children to attend upon a medical practitioner or therapist without the prior consent of the other parent. This would not cover emergency or routine attendances for treatment of minor ailments. It seems the father has a concern as to the therapy obtained by the mother for the children without her first consulting with him and gaining his approval.

32.Given that I propose that the parents have equal shared parental responsibility it seems to me, at least in case of an interim order, it follows that there ought be some restraints on the parties of the nature sought by the husband and specified in the preceding paragraph.

33.The father submitted that the boys should live with him as proposed by the mother. He agrees that the proposal reflects the current arrangement. In relation to the time the oldest child should live with him he proposes that S live with him for the same time as the boys, however, he suggests she have overnight on Tuesday in week two but not Thursday of that week. He also seeks she spend overnight on Sunday with him. He says that will mean she spends only six nights per fortnight with him.

34.The mother submits the current arrangement is not satisfactory for S. The mother submits that she is prepared to follow the recommendation of the Family Consultant in relation to the time the children spend with each parent at least on an interim basis.

35.The mother addressed the anxiety of the oldest child which she has identified and which has been the subject of medical advice.

36.The mother drew the court’s attention to a text message attached to the father’s affidavit, such message dated 20 September 2015. This was a text communication between S and the father. The mother submits this message illustrates the father’s insensitivity to the oldest child. The mother in her affidavit filed 20 November 2015 has particularised a large number of interactions with S involving the father. These interactions indicate difficulty developing in the relationship between the oldest child and the father.

37.The mother submits that her proposal for the time S is with each parent fits with the Family Consultant’s recommendation and also with the stated wish of the child.

determination

38.As stated above I intend to make an order for equal shared parental responsibility. The Act provides in s 61C(1) that each of the parents of a child under 18 years has parental responsibility for the child. The parents in this case have been exercising parental responsibility as provided in s 61C since the separation. They now need orders of the court, and given the types of disputes, which have been aired in the affidavit material filed by each, there should be a formalising of the arrangement which they have put in place, pending further order.

39.One of the consequences which flows from my decision to make an order for equal shared parental responsibility is that the court is required to consider making an order for the children to spend equal time with each parent where an order for equal shared parental responsibility has been made or proposed to be made (s 65DAA). In this matter the parents agree upon the time the boys live with each. The order proposed by the mother is agreed to by the father. That provides for the boys to spend six nights a fortnight living with the father. The mother proposes that the oldest child spend five nights a fortnight living with the father. That position accommodates a particular view expressed by S and accords with the recommendation of the Family Consultant. As a consequence, I take the view that the present circumstances of the children would not be best served by having an equal time arrangement living between their parents but rather a regime which provides for substantial and significant time with each parent should be imposed only as an interim measure.

40.I propose to make orders which will see the children live with each parent in a configuration specified in the orders. The use of the words “live with” expressed in orders at this time is more likely to be beneficial to the children because of the parental reaction to the alternative, than it is likely to be detrimental.

41.I propose to make an order for S to live with the father in the configuration sought by the mother as I consider it is responsive to the needs of the child and is in keeping with the expert evidence which is contained in the Child Responsive Program Memorandum. I also consider that the oldest child is of an age where her wishes should be given significant weight.

42.I note from the documents which form exhibit H3 that the difficulty experienced with S spending time with the father is not new and has been the subject of concern, at least on the mother’s part, for a considerable amount of time. It seems the relationship between the oldest child and the father has grown in complexity and discord for some time.

43.In exhibit H2 I note a letter from Ms M advising that at November 2014 S was saying she wanted to spend equal time with each parent. Clearly something of significance has occurred to change her view on such an arrangement.

44.Subject to slight adjustment I consider that the additional injunction sought by the father should be made. It seems on the evidence that considerable parental conflict will emerge from either party taking unilateral action to involve any of the children in therapy with psychologists or specialist medical practitioners. Clearly each parent must be able to have the children receive routine and emergency medical treatment and I do not see that as a matter of dispute.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 11 December 2015.

Associate: 

Date:  11 December 2015