Spencer and Squire (No.3)
[2018] FCCA 2362
•24 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SPENCER & SQUIRE (No.3) | [2018] FCCA 2362 |
| Catchwords: FAMILY LAW – Parenting – where both final and interim parenting orders made on 15 December 2017 – very young child – where the father seeks to vary interim orders made 15 December 2017 – where the mother resists variations being made – orders “pending further order” – whether the principles in Rice & Asplund apply – interim hearing – change of circumstances – failure to reach consensus where order for equal shared parental responsibility. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 64B, 65AA, 65D, 65DA, 65DAB, 65DAC Federal Circuit Court of Australia Act 1999 (Cth), s.81 Federal Circuit Court Rules 2001 (Cth), r.16.05 |
| Cases cited: Banks & Banks [2015] FamCAFC 36 |
| Applicant: | MR SPENCER |
| Respondent: | MS SQUIRE |
| File Number: | SYC 8327 of 2016 |
| Judgment of: | Judge Harper |
| Hearing date: | 16 August 2018 |
| Date of Last Submission: | 16 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 24 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Richardson SC |
| Solicitors for the Applicant: | Barkus Doolan |
| Solicitor-advocate for the Respondent: | Mr O'Sullivan |
| Solicitors for the Respondent: | O'Sullivan Legal Family Lawyers |
ORDERS
Orders 7 and 8 made on 15 December 2017 be varied to read as follows:
The child spend time with the father as agreed in writing between the parties and, in the absence of such agreement, from the date of these orders until 2 October 2018, as follows:
(a) During weeks 2 and 4 of the 4 Week Cycle in Town A:
(i)From 10:30am to 1:30pm and 3:00pm to 6:00pm on Saturday and from 9:00am to 2:00pm Sunday; and
(ii) From 9:00 am to 1:00pm on Monday.
(b) Where the father provides notice to the mother of his intention to spend time with the child no later than 28 days prior to commencement of proposed time, during weeks 1 and 3 of the 4 Week Cycle, in Town A:
(i)From 10:30am to 1:30pm and 3:00pm to 6:00pm on Saturday and from 9:00am to 2:00pm Sunday; and
(ii) From 9:00am to 1:00pm on Monday.
…
(e) Notwithstanding anything specified in orders 7(a) to (d), the child shall spend time with the father from 9:00am to 1:00pm on Easter Sunday.
The child shall spend time with the father as agreed in writing between the parties and, in the absence of such agreement, as follows:
(a) During weeks 2 and 4 of the 4 Week Cycle in Town A:
(i)From 10:30am to 1:30pm and 3:00pm to 6:00pm on Saturday and from 9:00am to 2:00pm Sunday; and
(ii) From 9:00am to 1:00pm on Monday.
(b) Where the father provides written notice to the mother of his intention to spend time with the child no later than 28 days prior to commencement of proposed time, during weeks 1 and 3 of the 4 Week Cycle, on the Region 1 or in Sydney:
(i) from 12.00pm to 6.00pm on Saturday; and
(ii) from 9.00am to 3.00pm on Sunday.
(c) During the School Holidays at the end of terms 1, 2 and 3 in Town A, in a single agreed week from 11:00am to 5:00pm each day and, failing agreement as to time frame, such time shall commence on the second Saturday of each school holiday period.
(d) During the School Holidays at the end of term 4 in Town A, in two agreed weeks, from 11.00am to 5.00pm each day and, failing agreement as to time frame, such time shall commence on the second and the eighth Saturday of each school holiday period.
All extant applications be adjourned to 27 September 2018 at 12:00pm for call-over.
Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these orders until the adjourned date will not be heard on that date without the express leave of Judge Harper, however directions in respect of that Application or Objection may be given.
IT IS NOTED that publication of this judgment under the pseudonym Spencer & Squire (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 8327 of 2016
| MR SPENCER |
Applicant
And
| MS SQUIRE |
Respondent
REASONS FOR JUDGMENT
In these proceedings, I gave judgment on 15 December 2017 after a four-day hearing (“earlier judgment”).
I made orders, some of which were final and some of which were interim (“December 2017 orders”), in relation to a very young child, [X] born 2016 and presently 1 year and 10 months old.
One of the interim orders that I made was an order for equal shared parental responsibility. This order was made by consent. In relation to parental responsibility my reasons for judgment were expressed, in part, as follows:
“[206] In the first 12 months of the child’s life, the parties have been unable to agree on the manner and location of time spent with the father, the child’s name, or the place of baptism. This level of disputation is not encouraging. The parties have not yet had to deal with many of the major long term issues, such as education or health issues, but still can find very little agreement beyond a high level of generality. If such a trend continued, it would weigh against an order for equal shared parental responsibility on a final basis (see, for example, Warner & Warner [2016] FCCA 703 at [143], [144]).
[207] In this regard I keep in mind the discussion above concerning the consideration set out in s.60CC(3)(i) of the Act and I take account again of Dr B’s comments in paragraph 171, in particular that “the parents have the capability and skills to communicate well should they choose to prioritise this.”
[208] These parents should be able to exercise equal shared parental responsibility. If such an order is made, the parties will be required to comply with the obligations for consultation prescribed in s.65DAC of the Act.
[209] Having considered these matters, and in light the consensus for an order for equal shared parental responsibility, I will make an order by consent. However, I am not prepared to make such an order on a final basis at this stage. Before such an order could be made, it is preferable to wait and see how the parties’ capacity to co-parent evolves until the child turns 3. It is also preferable to ascertain how the child develops and grows. Once some time has passed, the Court will be in a better position to assess the co-parenting capacity of the parties.”
I also made an order for the child to live with the mother in Town A, in New South Wales.
Orders were made for the father to spend time with the child in Town A on a four week cycle and in the Region 1 or Sydney at his discretion from 2 October 2018. Orders seven and eight were in the following terms:
“THE COURT FURTHER ORDERS THAT:
(7) The child spend time with the father as agreed in writing between the parties and, in the absence of such agreement, from the date of these orders until 2 October 2018, as follows:
(a) During weeks 2 and 4 of the 4 Week Cycle in Town A:
(i) From 10.00am to 1.00pm and 3.00pm to 6.00pm on Saturday and Sunday; and
(ii) From 9.00 am to 1.00pm on Monday.
(b) Where the father provides notice to the mother of his intention to spend time with the child no later than 28 days prior to commencement of proposed time, during weeks 1 and 3 of the 4 Week Cycle, in Town A:
(i) From 10.00am to 1.00pm and 3.00pm to 6.00pm on Saturday and Sunday; and
(ii) From 9.00am to 1.00pm on Monday.
(c) Between 26 December 2017 to 2 January 2018 inclusive in Town A from 10:00am to 1:00pm and 3:00pm to 6:00pm each day.
(d) During the School Holidays at the end of terms 1, 2 & 3, in a single agreed week, from 10.00am to 1.00pm and 3.00pm to 6.00pm each day and, failing agreement as to time frame, such time shall commence on the second Saturday of each school holiday period.
COMMENCING 2 OCTOBER 2018, THE COURT ORDERS PENDING FURTHER ORDER THAT:
(8) The child shall spend time with the father as agreed in writing between the parties and, in the absence of such agreement, as follows:
(a) During weeks 2 and 4 of the 4 Week Cycle in Town A:
(i) from 10.00am to 1.00pm and 3.00pm to 6.00pm on Saturday and Sunday; and
(ii) from 9.00am to 1.00pm on Monday.
(b) Where the father provides written notice to the mother of his intention to spend time with the child no later than 28 days prior to commencement of proposed time, during weeks 1 and 3 of the 4 Week Cycle, on the Region 1 or in Sydney:
(i) from 12.00pm to 6.00pm on Saturday; and
(ii) from 9.00am to 3.00pm on Sunday.
(c) During the School Holidays at the end of terms 1, 2 and 3 in Town A, in a single agreed week from 11:00am to 5:00pm each day and, failing agreement as to time frame, such time shall commence on the second Saturday of each school holiday period.
(d) During the School Holidays at the end of term 4 in Town A, in two agreed weeks, from 11.00am to 5.00pm each day and, failing agreement as to time frame, such time shall commence on the second and the sixth Saturday of each school holiday period.”
Procedural History
The procedural history is detailed in my earlier judgment. It is unnecessary to repeat that history in this judgment.
As noted above, the matter came before me for final hearing on 26, 27 & 28 July 2017. I made orders, some of which were final and some of which were interim.
On 20 March 2018, the father filed an Application in the Case and then an amended Application in a Case on 23 May 2018 which came before me on 25 May 2018. On that date, the matter was listed for interim hearing before me on 16 August 2018 limited to the parenting issues raised by proposed orders 2 to 7 of the father’s amended Application in a Case.
When the matter was heard on 16 August 2018, the ambit of the debate was limited to the following five issues:
a)variation of the time to be spent by the father with the child on Saturdays and Sundays;
b)specific orders relating to Easter 2019, noting the religious holiday falls during the Queensland school holidays;
c)the specific allocation of time to be spent between the father, the paternal family and the child on the occasion of any christening of the child;
d)specific orders for travel by the mother and child to the Region 1 on 8 & 9 September 2018 for the purpose of the child visiting the paternal grandfather who is suffering from cancer; and
e)whether order 8(d) should be varied so that a second week of the block time in the term 4 long school holidays at the end of 2018 should commence either on 26 December 2018 or on the eighth Saturday being 19 January 2019.
Material relied upon
The father relied upon the following:
a)Amended Application in a Case filed 23 May 2018;
b)His Affidavit filed 20 March 2018;
c)His Affidavit filed 23 May 2018; and
d)His Affidavit filed 16 August 2018.
The mother relied upon the following:
a)Amended Response to Application in a Case filed 24 May 2018; and
b)Affidavit filed on 13 August 2018.
Discussion
The parties agreed to certain limited orders by consent on 16 August 2018.
Otherwise, the mother submitted that before the Court could entertain a variation of the orders made on 15 December 2017, the father must satisfy the well-known principles in Rice & Asplund (1979) FLC ¶90-725 (“Rice & Asplund”). These, in essence, require the applicant to establish a substantial change of circumstances. The mother submitted that these principles apply equally to interim as well as final orders.
In Rice & Asplund itself, the leading judgment was given by Evatt CJ. Pawley SJ and Fogarty J agreed. In particular, Evatt J said:
“[The Court] should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the Court would need to be satisfied by the applicant that, to quote Barber J, “there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.”
For his part, the father argued that the December 2017 orders contemplated an attempt at agreement by the parties before a time regime was imposed by the Court, and the changes proposed were insubstantial. Therefore the present case was not a situation appropriate for the application of the principles in Rice & Asplund.
Neither party referred to a specific power to vary the December 2017 orders. Such a power can be found in s.65D(2) of the Family Law Act 1975 (Cth) (“the Act”).
Section 65D(2) of the Act gives the Court the discretion to make a parenting order that “discharges, varies, suspends or revives some or all of an earlier parenting order.” In Reid & Lynch [2010] FamCAFC 184; (2010) FLC 93-448, 44 Fam LR 141 at [232]-[233] the Full Court (O’Ryan J, Finn and Strickland JJ agreeing) held an order made in exercise of the power in s.65D(2) is a parenting order, as defined in s.64B(1), and should be construed as subject to s.65AA, which confirms that, by s 60CA, the best interests of the child are the paramount consideration in deciding whether to make a particular parenting order. The Court also embraced the view of Anthony Dickey in Family Law (Thomson Law, 5th ed, 2007) p 285, that “there are no statutory conditions which must be satisfied before a court may vary a parenting order”. However, as O’Ryan J said at [234], “there are sound reasons why there should be some restraint on the exercise of the power.” The need for finality of litigation and the principles in espoused in Rice & Asplund articulate that restraint: [236]-[237].
The status of an order under s.65D(2) as a parenting order also carries with it the mandatory application of the presumption of equal shared parental responsibility in s.65DA(1), unless the presumption does not apply or is rebutted in accordance with ss.61DA(2), (3) or (4). Here where there is in place already an interim order for equal shared parental responsibility and the court is invited to make a further interim order, the court, for the purposes of s.61DA(3), would readily consider it inappropriate to apply the presumption.
A power to vary or set aside interlocutory orders is also found in Rule 16.05(2)(c) of the Federal Circuit Court Rules2001 (Cth) (“the Rules”), which grants a discretion to vary or set aside an order after it has been entered if, inter alia, it is interlocutory. The parties addressed no argument to this rule. Part 16 of the Rules falls within Chapter 1 of the Rules and, therefore, applies to all proceedings in this Court. Here the interim orders were made “pending further order”. Orders expressed in such terms are generally understood as interlocutory orders which are intended to operate until the rights of the parties have been determined by the making of orders disposing of the substantive proceedings: see Millar & Millar [1983] FamCA 21; (1983) 9 Fam LR 5 ; Charisteas and Charisteas [2015] FCWA 15 at [217]. Accordingly, the interim parenting orders in question here appear to fall within Rule 16.05(2)(c).
It is worth observing that, generally speaking there is a degree of convergence, at a factual level, between the recognised basis for exercise of the discretion granted in a rule such as Rule 16.05(2)(c) and the criteria in Rice & Asplund. Material change of circumstances is also a critical consideration in the treatment of successive interlocutory applications in other courts and other areas of legal discourse. It is well recognised that, as a general rule, a subsequent application to set aside, vary or discharge an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings, must be founded on a material change of circumstances, or the discovery of new material which could not reasonably have been put before the court on the hearing of the original application: Brimaud v Honeysett Instant Print Pty Limited (1988) 217 ALR 44 at 46–47, referred to with apparent approval by the Full Court in Jess & Garvey [2018] FamCAFC 44 at [130]. Brimaud also makes clear that there is also a convergence with Rice & Asplund on the principle of finality of litigation. At [70] McLelland J said “It would be conducive to great injustice and enormous waste of judicial time and resources if there were no limit on the power of a party to have any interlocutory application or order relitigated at will”.
Having said that, there appears to be a central difference between interim parenting orders, made under Part VII of the Act, including an order exercising the discretion to discharge or vary in s.65D(2), and an order vary or setting an interlocutory order pursuant to the power in Rule 16.05(2)(c). The latter type of order is not, strictly speaking, a parenting order as defined in s.64B(1), because it is not made under Part VII of the Act. Rather it is made pursuant to the Rules, which are themselves made pursuant to the rule making power in s.81 of Federal Circuit Court of Australia Act, 1999 (“FCCA Act”). However, as I say above, such matters were not the subject of any argument, and I say nothing further about Rule 16.05(2)(c) for the purposes of this judgment.
There is Full Court authority which makes clear that the principles in Rice & Asplund are applicable to successive interim parenting applications.
In Sullivan & Tyler (No. 4) [2013] FamCAFC 175, the Full Court dealt with an appeal from interim orders made in January 2013, dismissing an application to vary interim parenting orders made in 2011. The Full Court said at [95]:
“Although the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”), which govern determination of the applications before his Honour, have, subsequent to Rice & Asplund, undergone significant amendment, there is no doubt that the principles established in that case and the subsequent line of authority applied to these proceedings.”
In SCVG & KLD [2014] FamCAFC 42, the Full Court considered an appeal from interim orders made on an application made after earlier final orders and stated at [91]: “Lest it be overlooked, repeat applications may invite the application of the line of authority commencing with Rice and Asplund [1978] FamCA 84; (1979) FLC 90-725.”
Recently, in the decision of Merla & Merla [2018] FamCAFC 101, the Full Court found error in a primary judgment by reason of the failure to give a proper consideration to the issue of a change of circumstances for the purposes of Rice & Asplund in relation to interim parenting orders.
I am bound by authority. These decisions confirm that variation of interim parenting orders, even when made “pending further order”, require some consideration of the application of the principles in Rice & Asplund.
However, it is relevant to observe that many, even most, of the authorities which have dealt with Rice & Asplund involved final parenting orders. Reid & Lynch was such a case. It is not clear to what extent the principles for the application of Rice & Asplund, worked out in relation to the variation or discharge of final parenting orders, should be applied to interim parenting orders.
For example, it is well established, in relation to final orders, that it is a matter of discretion whether to approach a Rice and Asplund issue by way of preliminary hearing or a full hearing: see the discussion in Marsden & Winch [2009] FamCAFC 152; 42 FamLR 1 at [44] to [47].
In Marsden & Winch at [48], the Full Court pointed out that the changes in the lives of families are many but “the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years...”
The Court also said at [49]: “It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability...”, and at [50]:
“Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case.”
At [58], where the Full Court formulated an approach based on a requirement:
“(1) for a prima facie case of changed circumstances to have been established; and
(2) for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.”
A bifurcated approach is plainly valuable when considering a variation to final parenting orders. A preliminary hearing can result in an early termination of the proceedings and endorse the importance of the finality of litigation. A determination at a final hearing, as opposed to a preliminary hearing, can have important consequences. In Kulat & Azzarudin [2018] FamCAFC 97 at [14], Strickland, Kent and Forrest JJ recognised that the application of the rule may be curtailed or carry less force when applied at the end of a full hearing.
However, it seems to me, the distinction between a “preliminary” or “full” hearing has no role to play in relation to variation of interim parenting orders, which are by definition usually made in anticipation of a full hearing.
Furthermore, the manner of dealing with evidence is prima facie subject to different considerations. Where a full or final hearing takes place, there will be affidavit evidence and possibly expert evidence which is tested in the usual way by cross examination. Contested factual questions will be resolved, as at any final hearing in civil litigation. Where a Rice & Asplund question is determined as a preliminary issue, the hearing is conducted on its merits and not by applying summary dismissal principles, but the Court is bound to assume the acceptance of the applicant’s evidence on the question of whether a sufficient change in circumstances has been demonstrated: Marsden & Winch at [47]; Searson & Searson [2017] FamCAFC 119 at [60].
An interim hearing to vary or discharge interim parenting orders will, prima facie, be conducted in the usual manner for interim hearings, that is, as an abridged process where the scope of the enquiry is “significantly curtailed”, based only on affidavits read, documents tendered and submissions of the parties and findings made at an interim hearing should be “couched with great circumspection” (Marvel & Marvel [2010] 43 Fam LR 348 at [120], [122], following SS & AH [2010] FamCAFC 13 at [88]). It is well established that, at interim hearings, the Court looks to the less contentious matters, such as the agreed facts and issues not in dispute: Goode & Goode [2006] FamCA 1346 at 80,901; Salah & Salah (2017) 56 FamLR 299, at [36] but also that it is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue: SS & AH (supra) at [100]; Marvel & Marvel at [123] Eaby & Speelman [2015] FamCAFC 104; (2015) FLC 93-654 at [18]; Salah & Salah (supra) at [39]-[42].
In my view, the weight of authority supports an approach that retains these aspects which differentiate interim hearings involving a Rice & Asplund question from preliminary or full final hearings on such a question.
There are other reasons for doing so. For example, an applicant for a variation or discharge of interim parenting orders may rely upon allegations of family violence or abuse as constituting the relevant change of circumstances. There may be counter-allegations. All such allegations may, as is often the case, be hotly contested at an interim hearing, and the Court may be unable to make findings at that stage. It would be a strange result if for the purpose of considering a Rice & Asplund question in such circumstances, the applicant’s allegations of violence or abuse should simply be accepted, adopting the preliminary hearing approach articulated, for example, in Searson, above.
Several decisions also show that the Rice & Asplund rule is not absolute in its application. The degree of change or variation sought to existing orders is highly relevant in determining whether the rule has application. In Langmeil & Grange [2013] FamCAFC 31, the Full Court said at [46]: “… the application of the rule is connected with the nature and degree of change sought to the earlier order.” In Reid & Lynch at [239], [260] the Full Court held the rule may not impede an application for a small alteration which may require only a short and narrow inquiry, yet prevent a hearing for more far-reaching changes. In Granville & Blakeslee [2017] FamCAFC 162 at [59] the Full Court held that orders for time on special occasions “could not conceivably encounter any potential impediment to a court entertaining the application by reason of the rule known as Rice and Asplund”.
In light of this discussion, on an application to vary or discharge interim parenting orders, exercise of the Court’s discretion may be informed by at least the following considerations:
a)The best interests of the child or children are the paramount consideration;
b)Subject to the views and orders of the judge hearing the application, the hearing will ordinarily be conducted in accordance with the usual practice in this Court applicable to interim hearings, as an abridged process where the scope of the enquiry is “significantly curtailed”;
c)The application of Rice and Asplund should be considered;
d)The application of Rice and Asplund may not be appropriate where a small alteration is sought which may require only a short and narrow inquiry or the nature and degree of change sought does not warrant it; and
e)Where the degree of proposed variation to existing orders requires the application of Rice and Asplund, the applicant must demonstrate a change of circumstances since the orders were made.
f)Factual determinations concerning such questions as the degree or nature of any change or whether a proposed change will be demonstrably contrary to the best interests of a child, may be governed by the usual limitations of an interim hearing.
In the present matter, the December 2017 orders were made some eight months ago. Some of the variations sought by the father, such as the change of the timing on Saturdays and Sundays, fall into the category of small alterations requiring only a short and narrow inquiry. Others, such as the proposed order for the child to be on the Region 1 on 7 and 8 September 2018, and the time sought over Easter 2019 are not such small alterations. The time sought over the Easter weekend is more than time on a special occasion. Cumulatively, the changes sought by the father, in my view, are of sufficiently material nature and degree to require consideration of Rice and Asplund.
Change of Circumstances
The question of change of circumstance can be answered by resort to, or inferences from, uncontested factual matters in this application.
In my view, the existing interim order for equal shared parental responsibility has significance to the question of change of circumstances. As the extract above from my reasons for judgment on 15 December 2017 make clear, the parties had not, to that point, demonstrated much capacity for agreement. Once the order for equal shared parental responsibility was made, a statutory obligation, pursuant to s.65DAC, to consult and make a genuine attempt to reach a joint agreement was imposed upon them. My earlier reasons for judgment specifically adverted to the expert evidence suggesting the parties had a capacity to co-parent cooperatively, but it was preferable to wait and see how that capacity evolved.
A central objective of the December 2017 orders was to set a regime for time to be spent by the child with his father. The very fact of the present further interim application and the inability of the parties to agree on reasonable or practical adjustments for the facilitation of the existing interim orders, raises the strong inference that, since the December 2017 orders, the parties have disappointed the statutory expectations imposed upon them by s.65DAC. In my view, this failure constitutes of itself a sufficient change of circumstance meeting the criteria in Rice & Asplund. The court is required to intervene to break an impasse concerning time with the father.
Other factors might be pointed to as sufficient change of circumstances. For example, the child is about to turn 2 years old, and has experienced a period of some 8 month’s further development since the December 2017 orders. Furthermore, the reason given by the father for a variation to the commencement time on Saturdays lies in his inability, by reason of airline timetables, to get to Town A by 10:00am on Saturdays, unless he arrives the night before and pays for a night’s accommodation. The scheduled times for his daughter [A]’s (hobby) classes changed in 2018. This has created a substantial difficulty for the father to reach Town A in the time provided for weeks 2 and 4 pursuant to Order 7(a) of the December 2017 orders. This problem has arisen since the December 2017 orders.
In summary, I am satisfied that a change of circumstances has been demonstrated sufficient to justify embarking on a reconsideration of the orders.
Best Interests of the Child
Since the father is seeking parenting orders, the statutory pathway must be followed. The best interests of a child are the paramount consideration (s.60CA of the Act).
Section 65D(1) of the Act provides that this Court may make such parenting orders as it thinks proper, subject to the provisions of s.61DA and s.65DAB of the Act. Section 61DA of the Act requires the Court, when making any parenting order in respect of a child, to apply a presumption that it is in the best interests of a child for a child’s parents to have equal shared parental responsibility for the child. Pursuant to s.65DA(3) it is not appropriate to apply the presumption in light of the existing interim order for equal shared parental responsibility.
The best interests of a child are to be determined by an examination of the considerations set out in section 60CC of the Act, weighed and applied within the ambit of the objects and their underlying principles set out in section 60B of the Act.
In considering the role to be played by these objects and principles in the determination of parenting orders, I follow what the Full Court of the Family Court of Australia said in Maldera & Orbel [2014] FamCAFC 135; 52 FamLR 24 at [74]-[75]
Older authorities such as Smith and Smith (1994) FLC 92-488 (at 81,084) referred to a “preferable approach” involving the separate consideration of the statutory matters. In Jollie & Dysart [2014] FamCAFC 149 at [49] the Full Court called this a “guideline” and, in the context of what the Act now requires, “nothing more than an exhortation to apply system and order to that which the Act, and s 60CC in particular, mandatorily requires. What the Act mandates is a “consideration” – a mental process of analysis – that has proper regard to such of the enumerated matters as are judged to be relevant to the particular circumstances of the child.”
Since this is an interim hearing, it is not necessary to go through each and every matter in section 60CC in coming to a determination about what is in the best interests of the child. What is required is a consideration, in a particular case, of the relevant matters which the case presents: Crouper & Mitchell [2014] FamCAFC 246 at [23]. I approach the task of assessing only the relevant primary and additional considerations in s.60CC, guided by what was said by the Full Court in Banks & Banks [2015] FamCAFC 36 at [48]-[50] and in particular:
“[48] … By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.... It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed…
The parties broadly made reference to the best interests of the child. They did not make submissions directed to any specific provision in s.60CC. The considerations in s.60CC were considered at length in my earlier judgment. Repetition is not necessary. I have given consideration to them for the purposes of this judgment. The benefit of a meaningful relationship with the father remains a significant matter, bearing in mind the developmental stage of the child and the mother’s role as primary carer. There are no risk factors identified by either party. The issues joined were all in relation to time spent with the father, and adjustments to the existing orders to enable more time.
In light of the child’s young age, he will have no knowledge of the litigation. A further interim hearing on the issues raised by the father’s application would not be demonstrably contrary to his best interests.
Variation to times on Saturday and Sunday
The reasons given for adjustments to the timing in the December 2017 orders on Saturdays and Sundays in weeks one and three of the four-week cycle are set out in the father’s Affidavit filed 20 March 2018. The problem is the availability of flights arriving into Town A on Saturday morning and leaving on Sunday evening. His evidence of available flights support his submission that flight times from Sydney on Saturday mornings prevent him from reaching Town A before 9:45am and the latest flight leaving Town A is at 5:20pm on Sundays. When the time travelling to and from airports is factored in, the father is unable to spend time with the child in accordance with the existing orders.
As the father submitted, while he is employed and has parental obligations to the child’s older half sibling [A], the mother is currently not working and cares full-time for the child. Consequently, the father submitted that it is appropriate for the mother to take reasonable steps to facilitate the father’s time with the child taking account of his employment and other commitments.
The mother’s resistance to this change was based substantially upon her contentions relating to Rice & Asplund. Since I have formed the view that criteria in Rice & Asplund have been satisfied this general basis for resistance falls away. The mother also submitted the changes were not child focussed but were proposed to suit the convenience of the father.
She also submitted that the father could spend time with the child in accordance with existing orders by a combination of driving to Town A and flying. I am unable to form a view as to the practicality of such suggestions. The father’s other commitments, adverted to already above, suggest they may not be reasonable.
The mother also pointed out that the variation to the orders proposed by the father would result in a gap of only one hour between the father’s blocks of time with the child on Saturday and Sunday. The mother contends that one hour is insufficient for the child to be delivered back to his home for a rest or sleep. There is some force in this submission.
In my view, an adjustment to the times on Saturday and Sunday is appropriate, in order to promote the benefit to the child of a meaningful relationship with his father. I do not accept that the proposed variations are not child focussed. They may meet the father’s convenience at one level but they also promote the child’s relationship with the father.
However, I am not bound by the proposal of either party. I also consider that it would be in the best interests of the child for a gap longer than one hour to be maintained between the father’s blocks of time in Saturdays. The evidence does not permit me to conclude that a period of two hours is absolutely necessary.
Doing the best I can, I have decided to alter the start time on Saturdays to 10:30am and adjust the gap between separated blocks of time to one hour and a half hours.
As to Sundays, the father made an alternative proposal for a single block of time on each day. In light of the child’s older age and to accommodate the father’s need to catch a flight on Sunday evenings, on Sundays a single period of block time is more appropriate. The December 2017 orders already permit the father to spend a block of 4 hours with the father on Mondays, and from 2018, the child’s second birthday, the orders introduce the possibility of 6 hours of time on Saturday and Sunday in weeks 1 and 3 of the four week cycle. At present, six hours in one block may be too long for a child of two. I have decided that a single block of 5 hours on Sundays, beginning at 9.00am and returning the child for a sleep or nap at 2.00 pm, will be in his best interests. On the evidence before me, this should be sufficient time for the father to get to the airport to return to Sydney.
I cannot leave this issue without observing that it is most regrettable that the parties have found themselves unable to reach a sensible and adult agreement about how to manage the father’s time with the child. These are not questions which should consume scarce judicial time, especially when the parties are well-educated and otherwise high functioning individuals. It reflects poorly. It also raises considerable apprehension about the future capacity for constructive co-parenting of their child.
Easter 2019
It was common ground that Easter 2019 falls during the first week of the Queensland school holidays. “School Holidays” in the December 2017 orders is defined to be the Queensland school holidays.
At present there are no specific orders about Easter 2019. If no specific orders are made, by reason of the December 2017 orders, specifically order 8(c), in the absence of agreement with the mother, the father’s time would commence on the second Saturday of the school holidays, and he may spend no time with the child during Easter 2019. The father is proposing to spend time in Town A over the Easter long weekend.
It was common ground between the parties that some specific order concerning Easter 2019 should be made. There was however a vast difference between the parties’ proposals. The father sought time in Town A with the child on Good Friday, Easter Saturday and Sunday and Easter Monday. The mother proposed 9:00am to 1:00pm on Easter Sunday only.
I am not persuaded the father’s proposal about Easter is necessary or desirable in the child’s best interests. I will make an order reflecting the mother’s proposal. Then, according to the December 2017 orders, the father will spend time with the child each day in the second week of the school holidays.
Christening
Order 16 of the December 2017 orders is in the following terms:
“The child shall be baptised in the (religion) faith at Church in Town A and each parent shall nominate a Godparent for the child.”
It was undisputed that a christening was arranged earlier this year but was cancelled in the absence of agreement between the parties about the time that the father and his family might spend with the child on the occasion of his christening.
As I stated in my earlier judgment, it is remarkable that the parties, and I infer their extended families, cannot reach an agreement about this question and conduct a christening at which all present can observe ordinary standards of civil interaction: see the earlier judgment at [237]-[244].
It appears that no baptism has yet taken place. There is no evidence that a fresh date for a baptism has been set. The mother gave evidence in her Affidavit that baptism in the (religion) Church cannot occur if both parents do not consent.
This is not an issue upon which the Court should be asked to make an adjudication. The parties have the benefit of an order which nominates the specific (religion) denomination and the specific church in which baptism should take place. If they want their child to be baptised, they will have to start making a much greater effort to co-parent in a constructive and cooperative fashion and reach agreement. If they are unable to do so, when the question of parental responsibility comes to be determined on a final basis, their inability to agree about such things as baptism will obviously have to be taken into account.
8 & 9 September 2018
The father seeks specific orders in relation to 8 & 9 September 2018. He seeks an order that the mother be compelled to travel to the Region 1 on those dates. The reason for this is that the paternal grandfather is currently undergoing treatment for prostate cancer, but will be present on the Region 1 on those dates.
The mother resists this proposal on the basis that the trip to the Region 1 would be onerous for the child. She submitted the child is presently suffering recurring respiratory problems.
In my earlier judgment at [146] I stated “I am satisfied that compelling the child to travel to the Region 1 before he turns 2 would be unnecessarily onerous”, and at [147]: “Between the ages of 2 and 3, according to the expert evidence, the child will be old enough to sustain travel either to the Region 1 or Sydney”.
I take account of the illness of the paternal grandfather. Exposure to the father’s extended family will be an important part of the child’s development. However, the child is still very young. He will be two on 2018. Travel to the Region 1 over a weekend at this point in time, before the child is aged two, may well be difficult for him.
I am not satisfied there is a sufficient basis to make the orders sought about time spent with the father on 8 & 9 September 2018 as sought by the father.
Second Week of Block Time in December 2018 to January 2019
The reason for this proposed change is that by Order 8(d) of the December 2017 orders, if the parties cannot agree, the father’s time in his second allotted week in the Term 4 school holidays would commence on the sixth Saturday, which would be 5 January 2019. The father is travelling overseas with [A] between 3 and 13 January 2019. The father’s Amended Application in a Case seeks a variation to order 8(d) which would see his second week with the child in the 2018 Christmas holidays commence on 26 December 2018.
The mother resists this change on the basis that there has been no sufficient change of circumstances and the father should have organised his holidays to accord with the existing orders. I have already held circumstances have changed sufficiently.
The mother also resisted this change on the basis that it would mean the father would not see the child after the second block week for six weeks. To meet this concern the father then offered in open Court to commence his second block week on the eighth Saturday, being 19 January 2019. The mother gave no compelling reason for resisting this change.
I am satisfied the variation of order 8(d) to substitute “eighth” for “sixth” is in the best interests of the child.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Harper
Date: 24 August 2018
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