STAKER & MERRETT

[2015] FCCA 706

FEDERAL CIRCUIT COURT OF AUSTRALIA

STAKER & MERRETT [2015] FCCA 706

Catchwords:
FAMILY LAW – Parenting orders – time to be spent by children with mother during Christmas school holiday vacations – Father’s proposal that the children spend time with the mother for half of those holidays – Mother’s belief as to her inability to properly care for children for half of those holidays – Mother’s proposal that the children only spend 1 week of those holidays with her – Father’s proposal not in the best interests of children as meaningful relationship with mother might be jeopardised if she proves incapable of properly caring for children during that period – Mother’s proposal least likely to lead to further proceedings.

Legislation:

Family Law Act 1975, s.60CC(1),(2), and (3)

Applicant: MS STAKER

Respondent: MR MERRETT

File Number: SYC 2297 of 2010

Judgment of: Judge Newbrun

Hearing date: 18 March 2015

Date of Last Submission: 18 March 2015

Delivered at: Parramatta

Delivered on: 31 March 2015

REPRESENTATION

Solicitors for the Applicant: Farah Lawyers

Solicitors for the Respondent: One Group Legal Pty Ltd

Counsel for the Independent Children's Lawyer: Mr Maddox

Solicitors for the Independent Children's Lawyer: Shedden & Associates

ORDERS

1. That the children spend additional time with the mother as follows:

   a)in the Christmas school holiday vacations for the whole of the first week of those holidays

   b)during such further times during the Christmas school holiday vacations as the mother and father may agree.

2. That changeovers take place at the father’s home, with the mother or her nominee collecting the children from the father’s home at the commencement of the children’s’ time with the mother and the mother or her nominee returning the children to the father’s home at the conclusion of the children’s’ time with the mother.

3. That the father be at liberty to travel with the children interstate and overseas provided the father provide the mother at least 28 days written notice of the proposed travel, including:

   a)dates of travel;

   b)copies of itineraries;

   c)contact numbers and email addresses for the duration of the holiday.

   In the event that the proposed dates of travel fall on days that the children spend time with the mother, then contact on those days will be suspended.

4. In the event that the respondent requires identification or a passport document in respect of:

   (a)     [X], born [omitted] 2003;

   (b)    [Y], born [omitted] 2005; or

   (c)     [Z], born [omitted] 2007 (“ the children”)

   the respondent shall be permitted to apply for and obtain any such identification or passport document for which any of the children without the consent of the applicant mother.

5. In the event that the proposed dates of travel fall on days that the children spend time with the mother, then contact on those days will be suspended.

IT IS NOTED that publication of this judgment under the pseudonym Staker & Merrett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYC 2297 of 2010

MS STAKER

Applicant

And

MR MERRETT

Respondent

REASONS FOR JUDGMENT

Introduction

1. At the final hearing of these parenting proceedings, on 17 March 2015, the parties eventually reached agreement on all matters except one. That outstanding matter was the issue of the care of the three children of the former marriage during the Christmas school holiday vacations. The father’s proposal was that the mother care for the children during half of those holidays. The mother’s proposal was that she only care for the children for one week of those holidays. The parties asked the court to decide that one outstanding issue, after hearing oral evidence from the parties including submissions.

2. The father, the respondent in the proceedings, is aged 35 years. He was born in Sydney and is of Lebanese heritage. The mother, the applicant in the proceedings, is aged 30 years and was born in Lebanon. The parties met in Lebanon in 2001 or 2002 and were religiously married there.  They were married in Australia on [date omitted] 2003.

3. There were three children of the marriage; [X] born [omitted] 2003, [Y] born [omitted] 2005 and [Z] born [omitted] 2007.

4. The terms of settlement between the parties in relation to the parenting proceedings provide for the father to have sole parental responsibility for the children; the children live with the father; the mother spend time with the children as follows:

   a)in school terms from 9 am to 7 pm on alternate Sundays, for a period of three months, commencing 22 March 2015;

   b)thereafter in school terms from noon Saturday to 7 pm on the following Sunday on alternate weekends;

   c)in the April, July and October school holidays, for half of those holidays,

   and other ancillary orders.

5. The parties separated under the one roof in early 2008.  In March 2009, the mother returned to Lebanon with the children. She then returned to Australia in about June 2009 with the children. For about 10 months from around July 2009 to about February or March 2010, according to the father, he was not able to see the children by reason of orders made in the Local Court.

6. According to the mother she returned to Lebanon in about April 2010 without the children. The father commenced to care for the children in her absence.

7. The father met his current partner, Ms T, in about February 2011 and in about February 2012 they commenced a de facto relationship. A child was born of that relationship, [name omitted] born [omitted] 2013. A further child was born of that relationship, [name omitted], who is now aged 10 weeks.

8. The father’s new partner took on the role of mother of three children in the absence of the mother.

9. On 28 January 2011, orders were made in this court, in the absence of the mother, that the children of the marriage live with the father and that he have sole parental responsibility for them. The mother returned to Australia on 25 July 2012 and later commenced proceedings in this court in January 2013.

10. On 29 May 2013 an independent children’s lawyer was appointed by the court.

11. On 7 August 2013, consent orders were made in the court between the parties; the orders of 28 January 2011 were suspended; the children were removed from the Airport Watch List; the father was permitted to travel with the children outside of Australia for a certain period; pending further order the children shall live with the father; the children shall spend supervised time with the mother each alternate Saturday for a period of two hours at times nominated by a Family Centre or Contact Service, and other ancillary orders.

12. In September 2014 the parties agreed that the mother would spend time with the children every alternate Sunday from 10 am to 4 pm or 7:30 pm.

13. In August 2013 the mother met her new partner, Mr N. They commenced living together in December 2013. On [date omitted] 2014 the mother gave birth to a boy, [name omitted].

Evidence of the parties

1. The father stated that he was [occupation omitted], being a family business. He has three brothers, two sisters, some 23 nephews and nieces, and five uncles living in Australia. His mother lives in Australia. He has never lived outside Australia but has travelled overseas.

2. The father confirmed that he was seeking an order from the court that the children spend half of the Christmas school holiday vacations with the mother. He stated that he believed it was in the children’s best interests that they spent such time with the mother. He stated that it was important that the mother be a “parent” to the children and that she should do the normal things that a mother does with her children including showing the children how to behave properly.

3. The father stated that he usually does not have holidays during the Christmas school holiday vacation but takes the public holidays. He stated that the family business is quite flexible with allowing him to go on planned holidays.

4. The father stated that he and his new partner could look after the children during the Christmas school holiday vacations. He confirmed that he believed that the mother should care for the children during half of the Christmas school holiday vacations as she should be involved with them.

5. The mother gave evidence. She stated she was a student doing full-time study at the University [omitted]. She was also a full-time mother.

6. The mother stated that she was prepared to care for the children for one week in the Christmas school holiday vacations. She was asked by her solicitor why she did not want to care for the children for a longer period at that time. The mother stated that during the Christmas school holiday vacations her father-in-law from Lebanon would be living in her home. He was an elderly man, who had had heart surgery. She stated that he had stayed in her home from September 2014 to February 2015. She stated that physically and emotionally she could only cope with caring for the children for one week during the Christmas school holiday vacation. She stated that she would want to give the children all her love when caring for them but in the circumstances, with her own newborn baby and the father-in-law living in her home, it would be too much for her.

7. The mother’s attention was drawn to the report of the Family Consultant, Mr L, dated 25 November 2014. The court notes that in paragraph 2 of that report it is noted that the mother’s new partner works from home for six days per week. He is employed by a [omitted] company and is in charge of its Australian operation. He also takes care of [omitted] for a family business. The mother’s attention was drawn to paragraph 14 of that report which states, inter-alia:

   “She said, “I rely on my husband (Mr N) financially and I don’t think he would want them ([X], [Y] and [Z]).” She said that Mr N has one-day away from work per week and that the presence of her children, during the week, would put added strain on Mr N’s already pressured responsibilities…..if Mr N would agree, she would seek to spend more time with [X], [Y] and [Z]. She explained, however, that Mr N tires easily and would become stressed. She said, “I don’t want there to be negative energy in the house when he gets tired. I don’t want to feel guilty that I have put pressure on him. It may be okay in the future; now he is not used to kids and he found it hard to adjust to the baby.”

8. The mother stated that when she met her new partner she did tell him that she wanted to see her children. She stated that her new partner was not willing to raise children that were not his own and that she felt this when she met him.

9. The mother was asked whether she thought it best for the children that she only spend one week during the Christmas holiday vacation with them. She stated that she wanted to spend quality time with the children.

10. The mother repeated that her father-in-law was old and was not easy to care for. She stated that it would be too much for her to care for the children and her father-in-law during the Christmas school holiday vacation. She stated that the father-in-law came to Australia during the Christmas school holiday vacation because he wanted to escape the Lebanon winter.

11. The mother stated that although she does have extended family living in Sydney, they could not assist her in caring for the children during the Christmas school holiday vacations. She stated that her sister has two children of her own, she does not have much of a relationship with her brothers, and that her father works.

12. The mother was asked whether she had considered the father’s position, as far as his capacity to care for the children, noting that not only did he and his new partner care for the three children, but also a new toddler and baby. The mother stated that the father’s new partner was not working in paid employment and that everyone had different abilities. She stated that she gets really exhausted. She stated that if the four-year period during which time she did not see her children had not occurred, she might have been different. She stated that she had changed and her personality was different. She stated that she hoped that by Christmas 2016 things would have changed and that generally she would love to spend more time with the children in the future.

13. The mother reiterated that her preference was to care for the children in the first week of the Christmas school holiday vacations.

Submissions

1. Counsel for the Independent Children’s Lawyer submitted that the care of the children during the Christmas school holiday vacations should be shared equally. It was submitted that the parents could care for the children during this period on a staggered basis; for example two weeks at the beginning with one parent and one week later with that same parent.

2. The solicitor for the father referred to the Family Consultant’s report and submitted that the children have a desire to spend more time with the mother. It was submitted that the mother should embrace her responsibility as a mother.

3. The solicitor for the mother submitted that at this stage the mother was not ready for more than one week of caring for the children during the Christmas school holiday vacations.

The Family Report of 25 November 2014

1. The Family Report states, at paragraph 19, inter-alia:

   “Mr N explained that he works from home six days per week.. He said that he has an elderly father to attend to, and, a new baby. He said that he does not have “enough energy” to take care of more children.”

2. At paragraph 49, under the heading “Evaluation” the report states:

   “Notwithstanding the parties parenting preferences, an equal care parenting arrangement is not indicated by this assessment. (The children) have been in (the father’s) care for a substantial period. He and (his new partner) have been their source of nurturing and care and they have found security with them. Unless they have time to reconnect substantially with (the mother), their time with her should be on a more limited, but expanding basis.”

3. Paragraph 50 and following of the report states, inter-alia:

   “Another contra-indicator of equal care relates to the lack of communication between the parties..... Disputes cannot be resolved, if the children cannot perceive that their parents are working together to achieve their best interests, then their world becomes incongruent, ambiguous and emotionally unsafe. If they sense that their parents relationship is hostile, or that they become emotionally caught in their parents antagonism, then emotional damage may follow. Accordingly, with this matter, the complications of an equal care arrangement may be better avoided so that the children live with one parent and spend time with the other.

   51. It may be that the positive nature of the relationship between (the mother) and (the father’s new partner) carries some hope for a productive co-parenting relationship to emerge, however, the animosity present in the parties relationship would need to subside before the emotional risk to the children is minimised.

   53. It may be reasonable for (the father) to expect that (the mother’s new partner) might take more interest in the children. But, given that (the mother’s new partner) and the children have spent very limited time together, it is also reasonable to assert that the depth of their relationship would not sustain any more involvement than is provided by the present arrangement. However, it is considered that strategies should be implemented which allow for a more substantial relationship between (the mother’s new partner) and the children to develop, and thus pave the way for the spending of increased time between (the mother) and (the children).

   Recommendations

   Note that the parties have changed their proposals

   (The children) might spend time with (the mother) on alternate weekends from Saturday evening until 7:30 PM on Sunday, as an initial step towards the possibility of more involvement…”

Discussion

1. The court has considered the primary and additional considerations under section 60CC of the Family Law Act 1975 (the Act) in determining what is in the children’s best interests in relation to the parties competing proposals for care of the children during the Christmas holiday vacations.

2. The primary relevant consideration under section 60 CC(2) is the benefit to the children of having a meaningful relationship with both of the children’s parents. It is apparent that the mother is presently in the process of re-establishing a relationship with the children. She has given evidence, which the court accepts, that she believes she would be physically and emotionally incapable of properly caring for the children for three weeks during the Christmas holiday vacation at the end of the year; she will have the care of her elderly father-in-law who is not easy to care for, she will have the care of her newborn baby, and her new partner works from home. The new partner stated to the Family Report writer that he has an elderly father to attend to, and new baby, and that he does not have “enough energy” to take care of more children.

3. There is a real risk that if the court was to order that the mother care for the children for half of the Christmas holiday vacations and the mother’s asserted incapacities to properly care for the children eventuated, that the children’s relationship with their mother could be jeopardised. The court notes that the children are presently in the process of re-connecting with the mother and it is important that this process is not hindered.

4. In terms of any views expressed by the children, the court notes the Family Report. The father told the Family Report writer that the children were ready to embrace an equal care parenting arrangement. He reported that the children were happy to see the mother when they spent supervised time with her in the past. He stated that sometimes they are sad because they don’t see their mother. He stated that the child [X] especially needs the mother to be a mother figure. The father stated that the child [Y] missed his mother when she went away and suffered emotionally. The father’s new partner stated that the child [X] had once told her that she wanted to be with her mother. This child had directly told the report writer that she would like to spend more time with her mother. This child told the report writer that seeing her mother on alternate weekends was enough time. The child [Y] told the report writer that he would like to see more of his mother. The child [Z] told the report writer that he was happy to see his mother and would like to spend a night with her.

5. In the view of the court, the above views of the children, whilst heartening, are only of limited relevance in relation to the issue to be decided by the court, particularly when set against consideration of the primary consideration under s.60CC(2)(a), namely the benefit to the children of having a meaningful relationship with both parents, which has been dealt with above.

6. The children clearly have a close and meaningful relationship with their father and the father’s new partner. The children enjoy a close relationship with the father’s extended family. Whilst it is apparent that the children love their mother, they are presently in the early stages of redeveloping their relationship with the mother, in light of her prolonged absence overseas. The children’s relationship with the mother’s new partner would appear to be in the early developmental stages and the court notes the Family Report writer’s comment that, “it is considered that strategies should be implemented which allow for a more substantial relationship between (the mother’s new partner) and the children to develop.”

7. In terms of the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from the father, in the context of the father’s proposal that the children spend half of the Christmas holiday vacations with the mother, at this stage there is a lack of evidence to properly consider this consideration. It is noted that the parties have agreed to the mother spending time with the children for half of the April, July and October school holidays, but this has not yet occurred.

1. In terms of the capacity of the mother to provide for the needs of the children, including their emotional and intellectual needs, during the period that the father proposes that the mother care for the children during the Christmas holiday vacations, the court refers to its consideration above in relation to the primary consideration under section 60 CC(2)(a); in view of the mother’s other commitments during the upcoming Christmas holiday vacation, and her perceived limited capacities to properly care for the children if required to care for them for half of that period, there is a real risk that the mother may not be able to provide for those needs of the children during that period.

2. In terms of the additional consideration under section 60 CC(3)(l), namely whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child, the court is of the view that there is a real risk that if it orders the mother to spend time with the children for half of the Christmas holiday vacations, being the father’s proposal, and the mother proves incapable of adequately caring for the children at any time during this period, court proceedings might ensue-whether proceedings instituted by the mother seeking relief from her obligations, or contravention proceedings instituted by the father. The order that would least likely lead to further proceedings is the mother’s proposal.

3. The court notes further that it would not be in the best interests of the children to create expectations in the children that they would spend half of the Christmas school holiday vacations with their mother, which expectations may be unable to be realized if the mother proves incapable of adequately caring for the children during that period or not capable at all.

4. Accordingly, the court is of the view that it would not be in the best interests of the children to accede to the father’s proposal in relation to the Christmas school holiday vacations. The court will order that the children spend time with the mother for the first week of the Christmas school holiday vacations. It is to be hoped, as the mother stated in her oral evidence, that by the time of the 2016/2017 Christmas holiday vacation, the mother will be a position to agree with the father to the equal shared care of the children during those holidays and thereafter.

5. The court notes that during the hearing of the above contested issue relating to the Christmas school holiday vacations, the parties agreed to resolve a separate and distinct issue in contest between them. That issue related to the mother’ s application seeking an airport watch list order applying to the children; specifically she sought orders:

   a)That each of the parties, their servants and/or agents be and are hereby restrained by injunction from removing or attempting to remove the children from the Commonwealth of Australia

   b)The Marshall and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders, including all things necessary to include and retain the said children on the airport watch list in force at all points of arrival and departure in the Commonwealth of Australia and to maintain the children’s’ names on the watch list until the children reach 18 years of age.

6. After the father gave sworn evidence that he and the children would always return promptly from both a proposed overseas trip later this year, and any trip overseas in the future, the mother, through her solicitor, formally informed the court that the orders sought in the preceding paragraph were not pressed. A form of consent order was then handed up in court essentially providing that the father was to be at liberty to travel overseas with the children provided that certain information relating to such travel was provided by the father to the mother in writing.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate: 

Date: 31 March 2015