STOREY & PORTUS

Case •

[2014] FCCA 3032

•

19 December 2014

FEDERAL CIRCUIT COURT OF AUSTRALIA

STOREY & PORTUS [2014] FCCA 3032

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – application by father to vary earlier interim orders – where father seeks to take children to (country omitted) for a holiday – where father seeks time with children over Christmas/January school holidays – where existing interim orders did not make provision for time spent – where Family Report recommends extra time – whether orders should be varied on the basis of the Family Report.

PRACTICE AND PROCEDURE – Interim hearings – affidavits – limit on the number of affidavits to be relied upon at a final hearing – where each party sought to rely on four affidavits – where affidavit filed in court on the day of the hearing – parties should rely on one affidavit per witness in interim hearings.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 62G, 65DAA
Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Portus & Storey [2013] FCCA 2395
Vedder & Colliss [2014] FCCA 2682
Applicant: MR STOREY
Respondent: MS PORTUS
File Number: SYC 6744 of 2013
Judgment of: Judge Scarlett
Hearing date: 15 December 2014
Date of Last Submission: 15 December 2014
Delivered at: Sydney
Delivered on: 19 December 2014

REPRESENTATION

Solicitor for the Applicant: Mrs Messenger
Solicitors for the Applicant: Messenger Family Law
Counsel for the Respondent: Ms Petrie
Solicitors for the Respondent: Blackman Legal

ORDERS

UNTIL FURTHER ORDER

  1. The Application by the Father to take the children X born (omitted) 2006 and Y born (omitted) 2011 out of Australia and travel internationally with them to (country omitted) is dismissed.

  2. In addition to the time provided by Order (15) made on 13 December 2013 the children X and Y are to spend time with the Father during the Christmas/January school holiday period as follows:

    (a)from 12:00 noon on Christmas Day 25 December 2014 to 12:00 noon on Monday 5 January 2015; and

    (b)from 12:00 noon on Friday 16 January 2015 to 12:00 noon on Friday 23 January 2015.

  3. All other interim Applications are dismissed.

  4. The Application for Final Orders remains listed for final hearing at 10:00 am on 16 June 2015 to Wednesday 17 June 2015.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6744 of 2013

MR STOREY

Applicant

And

MS PORTUS

Respondent

REASONS FOR JUDGMENT

Application

  1. This is an Application by the Father to vary interim parenting orders made on 13th December 2013 so that:

    a)the parties’ two children spend more time with him during the school term and the school holidays; and

    b)he is permitted to take the children out of Australia to spend time with extended family members in (country omitted).

  2. The Mother opposes the Application    

Background

  1. The Applicant Father’s solicitor prepared a Case Outline and Summary of Argument in the hope that the Court would have the time to hear the Father’s Application in a Case on its first return date. There is a comprehensive chronology provided, which has been useful in preparing a recitation of the relevant background facts. I will have more to say about interim hearings later in this judgment.

  2. The Mother was born on (omitted) 1974. She is 40 years of age.

  3. The Father was born on (omitted) 1974. He, too, is 40 years of age.

  4. The parties met in 2005 and commenced living together in December of that year. Their son X was born on (omitted) 2006. Their daughter Y was born on (omitted) 2011.

  5. The parties separated under the one roof in June 2013. The Mother moved out of the family home on 29th September 2013. The Father says that the children lived in a shared care arrangement, spending seven nights a fortnight with each parent.

  6. On 14th November 2013 the Mother filed an Application, seeking various parenting orders, including an order providing that the children should travel to (country omitted) with her from 30th December 2013 to 17th January 2014.

  7. The Application was heard on 6th December 2013 and judgment was delivered on 13th December 2013 (Portus & Storey[1]). Certain parenting orders were made by consent, providing for the Father to spend time with the children on various dates in December.

    [1] [2013] FCCA 2395

  8. There were other orders made, providing that (in summary):

    a)The parties would have equal shared parental responsibility for the two children;

    b)The children were to live with the Mother;

    c)The Mother was permitted to take the children out of Australia to (country omitted) between 29th December 2013 and 24th January 2014;

    d)The children were to spend time with their father and his extended family in (country omitted) from 4th to 12th January 2014;

    e)Upon the children returning to Australia, they were to spend time with the Father:

    i)Each alternate weekend during the school term and each Wednesday from after school or day care to 7:00pm;

    ii)For a block of five days during each of the Autumn, Winter and Spring school holidays;

    iii)On the children’s birthdays, the Father’s birthday and Fathers’ Day.

  9. The parties attended a Child Dispute Conference with a Family Consultant on 6th February 2014.

  10. On 14th March 2014 the Father filed an Application in a Case seeking further interim parenting orders. On 7th April 2014, the day that had been allocated for hearing the Application, the parties entered into interim consent orders providing that:

    a)The children would spend time with their father for two blocks of time totalling nine days in the April school holidays;

    b)The children would spend an additional weekend with their father in June 2014;

    c)The children would spend time with their father in the school holidays from 9th July to 14th July 2014; and

    d)The Mother should be permitted to travel with the children to the (country omitted) from 26th June to 8th July 2014.

  11. On 27th May 2014 the Court ordered a Family Report. The Family Report was released on 19th August 2014. On that date, the Court listed the parenting proceedings for final hearing on 16th and 17th June 2015.

  12. The Father filed an Application in a Case on 18th September 2014, returnable on 15th December 2014, seeking a variation of the parenting orders. The Application was supported by an affidavit sworn on 18th September 2014.

  13. The Mother filed a Response to an Application in a Case on 10th December 2014, supported by an affidavit sworn that same day.

  14. The Father’s solicitor handed up a further affidavit of the Father on the day of the hearing, sworn on the day of the hearing.

The parties’ proposals

  1. The Father, by his Application in a Case, sought the following orders:

    1. Varying existing order 15 a) and 15 b) made on 13 December 2013, so as to provide that the children X (born (omitted) 2006) and X (born (omitted) 2011)(‘the children’) are to spend time with the Applicant father as follows:

    (a)During the school term for the remainder of the current 2014 school year:

    (i)Each alternate weekend from immediately after school or day-care as the case may be on Friday until the commencement of school or day-care on the Monday morning;

    (ii)Each alternate Thursday (being the Thursday preceding the weekend which the children will spend with  the Applicant father) from immediately after school or day-care as the case may be until 7pm; and

    (iii)Each alternate Thursday (in the other week i.e. not being the Thursday preceding the weekend which the children will spend [with] the Applicant father) from immediately after school or day-care on the Friday morning.

    (b)During the school term with effect from term 1 of the 2015 school year:

    (iv)Each alternate weekend from immediately after school or day-care as the case may be on Thursday until the commencement of school or day-care on the Monday morning; and

    (v)Each alternate Thursday (in the other week i.e. not being the Thursday preceding the weekend which the children will spend [with] the Applicant father) from immediately after school or day-care as the case may be until the commencement of school or day-care on the Friday morning;

    (c)For one half of all Autumn, Winter and Spring school holidays with effect from the Spring school holidays in 2014;

    (d)From 9am on Friday 26 December 2014 until 9am on Tuesday 6 January 2015 and then from 9am on Monday 26 January 2015;

    (e)For one half of all summer school holidays with effect from December 2015.

    2. The applicant father is permitted to take the children X (born (omitted) 2006) and Y (born (omitted) 2011) out of Australia and travel internationally with them to (country omitted) between 27 December 2014 and 6 January 2015.

    3.  That leave be granted to serve on short notice.

    4. That where necessary, compliance with the Rules and Regulations be dispensed with.

    5.  That the respondent mother pay the applicant father’s costs

    Affidavit/s (Provide details of the affidavit(s) supporting this application.)

    This application is supported by an affidavit made by Mr Storey dated 18 September 2014 filed in the Court on 18 September 2014 in support of parenting orders sought above.

  2. By her Response to an Application in a Case filed on 10th December 2014, the Mother sought the following orders:

    1. That pending further Order, interim Orders 3, 4, 6,15,16,17,18,19,20 and 21 made by this Honourable Court on 13 December 2013 continue.

    2. That Order 15(b) made by this Honourable Court on 13 December 2013 b3 varied to provide that pending final orders during the 2014/2015 summer school holidays and for the purpose of facilitating time between the children, X and Y (The Children), and the Applicant Father as follows:

    2.1from 12 noon on 28 December 2014 to 12 noon on 2 January 2015;

    2.2from 12 noon on 9 January 2015 to 12 noon on 14 January 2015; and

    2.3 from 12 noon 22 January 2015 to 12 noon 27 January 2015.

    3. That the Applicant Father’s Application in a Case filed 18 September 2014 be dismissed.

    4. That the Applicant father pay the costs of and incidental to this Application in a Case filed 18 September 2014.

Evidence and Submissions

  1. Even though the Application in a Case referred to one affidavit of the Father that was filed in support of the Application, the Applicant’s Case Outline states that he relies on no fewer than four separate affidavits, namely his affidavits of:

    a)29th November 2013;

    b)13th March 2014;

    c)18th September 2014; and

    d)15th December 2014.

  2. In his affidavits of 18th September and 15th December 2014, the Father refers to:

    a)His efforts to persuade the Mother to allow him to spend more time with the children, in accordance with the recommendations in the Family Report;

    b)His difficulty in making arrangements with the Mother about the children;

    c)His desire to spend time with the children over the forthcoming Christmas/January school holidays; and

    d)In particular, his desire for the children to travel with him for a holiday with his parents, his sisters and their families in (country omitted) from 27th December 2014 to 5th January 2015.

  3. The Father deposed in his affidavit of 15th December 2014 that he believed that it would be in the children’s best interests for them to spend time with him, his parents, his two sisters and their cousins. He deposed:

    I believe that the benefits that the children will receive from the planned family holiday in (country omitted) will far outweigh any possible health risks to which the children may be exposed.[2]

    [2] Affidavit of Mr Storey.12.2014 at paragraph [14]

  4. However, if the Court were not to allow the children to travel to (country omitted):

    …then I would ask the court to allow the children to spend time with me from noon on Christmas Day on 25 December 2014 until 12 noon 5 January 2015. This time over Christmas itself is the period Ms Portus allowed the children to spend with me last Christmas. I would then seek that the children be allowed a further holiday period with me from 12 noon on 16 January 2015 to 12 noon on 23 January 2015.[3]

    [3] Ibid at [15]

  5. The Father’s solicitor, Mrs Messenger, submitted that the earlier interim orders did not provide for the children to spend time with the Father either in the summer 2014 school holidays or over Christmas in 2014. She further submitted that the Father sought orders along the lines recommended by the Family Consultant in the Family Report, particularly that that the children should be able to spend time with him in the upcoming Christmas and Summer holidays. The trip to (country omitted) would be somewhat in the nature of a family reunion for the Father’s side of the family and would enable the children to see their grandparents, their aunts and their cousins.

  6. In her Case Outline Document, the mother indicated that she proposed to rely on her affidavits of:

    a)13th November 2013;

    b)2nd December 2013;

    c)28th March 2014; and

    d)10th December 2014.

  7. In her affidavit of 10th December 2014, the Mother states that the Father is essentially seeking the same orders that he previously sought in an Application in a Case filed on 14th March 2014, which came before the Court on 7th April. The Mother agreed to some consent orders on that occasion. She goes on to argue, in paragraph [9] of her affidavit:

    Mr Storey's Second Application is again agitating the issues that were before the Court on 13 December 2013 and which will be the subject of a final determination on 16 and 17 June 2015.[4]

    [4] Affidavit of Ms Portus 10.12.2014 at [9]

  8. The Mother does “not agree with the recommendations of the Family Consultant in her report 14 October 2014[5] which I believe will be subject to cross examination at the Final Hearing”.[6]

    [5] Sic – the date of the Report is 19 August 2014 and it was released that same day

    [6] Affidavit of Ms Portus 10.12.2014 at [11]

  9. The Mother states in her affidavit that she is opposed to the Father’s proposal to take the children to (country omitted), saying:

    (country omitted) is a 3rd world country and I do not agree that the children, who I believe are too young to travel to (country omitted), should be permitted to travel to (country omitted). I do not believe that it is in their best interests, in particular for their health.[7]

    [7] Ibid at [12]

  10. The Mother then sets out in her affidavit a list of the vaccinations which the children will be required to have. She states that they will need to be vaccinated against:

    a)Hepatitis A;

    b)Typhoid;

    c)Rabies;

    d)Malaria; and

    e)Dengue fever.

  11. She expressed her concern that the Father would not be able to identify when the children were really sick and would not seek medicinal attention for them in time.

  12. Counsel for the Mother submitted that her client was offering three blocks, each of five days, during the school holidays.

Agreed or uncontested relevant facts

  1. The parties’ son X was born on (omitted) 2006. He is aged 8 years and 8 months. Their daughter Y was born on (omitted) 2011.  She is aged 3 years and 6 months. The children have been living in the primary care of their mother since separation and have been spending regular time with their father. They have travelled overseas with their mother, to (country omitted) and the (country omitted).

  2. The parties attended interviews with Dr L, a Regulation 7 Family Consultant, on 25th June 2014. The Family Report was completed on 19th August 2014.

  3. The Family Consultant made these recommendations in her report:

    56.It is recommended that the parties do their utmost possibly through engagement with a family therapist to improve their communication so that they can assume joint parental responsibility more effectively.

    57.    It is recommended that the children live with their mother.

    58.It is recommended that the children spend five evenings per fortnight with their father and that this be incrementally increased over the next six months. It is also recommended that the parties move towards sharing school holidays and special occasions.

    59.It is recommended that the parties attend a Parenting After Separation Program.[8]

    [8] Family Report pages 19-20 at paragraphs [56]-[59]

The Relevant law in regard to Parenting Applications

  1. When the Court is considering making parenting orders, whether final orders or orders until further order (i.e. interim orders), it must have regard to various sections of the Family Law Act 1975 (Cth) that are to be found in Part VII of the Act. In particular, it should have regard to the provisions of:

    a)Section 60B, which contains the objects of Part VII and the principles underlying those objects;

    b)Section 60CA, which requires the Court to regard the best interests of the child (or children, as in this case) as the paramount consideration;

    c)Section 60CC, which sets out the way that the Court determines what is in a child’s best interests;

    d)Section 61DA, which deals with the presumption that it is in a child’s (or children’s) best interests for his or her parents to have equal shared parental responsibility for the child (or children); and

    e)Section 65DAA, which requires the Court to consider equal time or substantial and significant time with each parent where an order has been made that the parents should have equal shared parental responsibility for the child (or children).

  2. All of those matters have been considered, insofar as they are relevant. The matters in sections 60CC, 61DA and 65DAA will be discussed in more detail later in these reasons.

Relevant matters in section 60CC of the Family Law Act

  1. The Full Court of the Family Court, in the well-known decision of Goode & Goode[9], said that the Court at first instance must consider the matters in s.60CC that are relevant and, if possible, make findings about them, noting that:

    …in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.[10]

    [9] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

    [10] (2006) 36 Fam LR 422 at 445 [82]

  2. The two primary considerations are found in subsection 60CC(2). On the one hand, the Court must consider the benefit to the children of having a meaningful relationship with both parents. On the other hand, the Court must have regard to the need to protect the children from being subjected to, or exposed to, abuse, neglect or family violence. The Court is required by s.60CC(2A) to give greater weight to the latter consideration.

  3. Although the Mother raises a concern that the Father may not be suitably mindful of the children’s illnesses, and that he might fail to give them prompt medical attention, there is very little if anything that would suggest that either parent poses any unacceptable risk of harm to the children.

  4. There is also nothing to suggest that the children would not benefit from having a meaningful relationship with either parent. Quite the reverse would appear to be the case.

  5. The Court is required by s.60CC(3)(a) to consider any views expressed by a child and any factors, such as the child’s maturity or level of understanding that the Court thinks are relevant to the weight it should give to the child’s views. It is noteworthy that the older child, X, told the Family Consultant that he would like to live with each parent a week about and:

    …said that he would like to see his father more often and particularly would like to have his father drop him off at school.[11]

    [11] Family Report page 15 at [43]

  6. Not surprisingly, the younger child, Y, was not interviewed.

  7. Considering the nature of the children’s relationship with each parent, the Family Consultant had this to say:

    From this assessment, the children have a significant attachment to both parents who love and deeply care for them. The children were relaxed and at ease with both parents whose responses were sensitive and appropriate.[12]

    [12] Ibid page 18 at [52]

Equal Shared parental responsibility and section 61DA of the Act

  1. Currently, as a result of the interim Orders made on 13th December 2013, the parties have equal shared parental responsibility for the children. Neither party seeks to change that arrangement. Indeed, the Mother specifically seeks a continuation of that Order. In passing, I do not, with respect, believe that it is necessary to ask for an order until further order to continue. By definition, it remains in force until the Court makes another order varying, suspending or discharging it.

  2. In any event, there is no need to vary the current arrangement that the parties have equal shared parental responsibility for the children.

Section 65DAA of the Family Law Act

  1. Where the Court makes an order that the parties should have equal shared parental responsibility for their children, subsection 65DAA(1) requires the Court to consider whether it would be both in the children’s best interests and reasonably practicable for the children to spend equal time with each parent.

  2. Neither party seeks such an arrangement. I am not satisfied that it would be in the children’s best interests, even if it were reasonably practicable.

  3. Subsection 65DAA(2) requires the Court, where an order for equal time is not being made, to consider whether it would be both in the children’s best interests and reasonably practicable for them to spend substantial and significant time with each parent. There is no doubt that the children are spending substantial and significant time with the mother, as she is their primary carer.

  4. However, the Father seeks increased time with the children, clearly being of the view that the time he currently spends with his children is not sufficiently substantial, even if it might be significant. He points to the recommendations in the Family Report in support of his claim.

  5. It is hard to criticise a father for wanting to spend time with his children, especially one who is a loving parent with an obviously good relationship with them. However, there is no agreement from the Mother that the Father’s time should be increased. She does not agree with the contents of the Family Report and will not accept that the recommendations in the Report should be followed. As there is no consent, the Family Report remains an untested document.

  6. It is the Mother’s case that the father is “jumping the gun” by seeking what are in effect final orders at an interim hearing. There is obviously a temptation to seek to rely on a Family Report when it is released, especially when it contains findings and recommendations that one party wishes to have the Court adopt. But, as I said earlier, where the Family Report is not adopted by the other party, who wishes to challenge its findings, it remains an untested document until it can be tested at a final hearing.

  7. It is, however, a fact that the interim Orders made on 13th December 2013 did not cover the Christmas period or the Christmas/January school holidays, no doubt in the optimistic belief that the matter may resolved by this time.

  8. The orders that need to be made depend, first of all, on whether the Father should be permitted to take the children to (country omitted) in late December and early January. The Mother is implacably opposed to this proposal, citing her concerns about a threat to the children’s health by travelling to (country omitted), especially noting the vaccinations that would be needed.

  9. The Mother is a (occupation omitted) and her views should be given some weight. I am reluctant to accede to the Father’s application to take the children to (country omitted), especially noting the fact that Y is not yet four years of age. If she were to become ill whilst away, it is common knowledge that the medical facilities there would not be as efficient as those in say, (country omitted) or (country omitted).

  10. (country omitted) appears to be an odd choice as a place to take small children on a holiday and I am inclined to share the Mother’s misgivings about the proposed trip.

  11. The Father has, sensibly, set out in his affidavit of 15th December his alternative proposal if the (country omitted) trip did not obtain the Court’s approval. In that case, he seeks to have the children spend time with him from 12 noon on Christmas Day until 12 noon on 5th January, which he deposes is the same period of time that the Mother agreed he should have the previous year. He also seeks time from 16th to 23rd January 2015.

  12. Those times suggested by the Father sound reasonable and there does not appear to be any good reason why the children should not spend those two blocks of time with their father.

Orders that are in the children’s best interests

  1. Whilst I am not satisfied that it is in the children’s best interests to travel to (country omitted) at this stage of their lives, I am firmly of the view that they need to spend a reasonable amount of time with their father over the Christmas period and the Christmas/January school holidays. The dates proposed by the Father appear to be in the children’s best interests and orders will be made accordingly.

  2. It appears to be unfortunate that these parents are unable to reach agreement about arrangements for their children to spend time with them, as there appears to be plenty of scope for constructive discussions to take place before the final hearing in June.

Interim hearings

  1. This interim hearing arose as a result of an Application in a Case brought by the Father. It was heard on its return date, a busy list day, as is usually the case in December of each year. Orders were made four days later. It should have been obvious to the parties’ lawyers that the Court would be unlikely to be able to finalise the Application on the return date, and they were fortunate that the Application was able to be heard at all that day. There were two interim hearings already scheduled to be heard that day, as well as a short contravention Application.

  2. It was quite unreasonable for the parties’ lawyers to seek to rely on four separate affidavits from their clients for an interim hearing. It was equally unreasonable for the Applicant to seek to rely on an affidavit filed in Court on the morning of the hearing.

  3. There is a practice direction in this Registry which provides that, for an interim hearing, parties should rely on one affidavit per witness and that such affidavit should not exceed ten pages of text. Where an interim hearing is listed for a future date, the Court usually sets a time for affidavits to be filed and served, to avoid the objectionable practice of parties seeking to hand up affidavits on the morning of the hearing.

  4. The Court is facing a heavy workload across its various areas of jurisdiction, due to increased filings and a shortage of judges in various registries, and the task of Court is not made any easier by practitioners who blatantly misuse the interim hearing procedure. It should be made clear that, for an interim hearing, the Court will not allow parties to rely on every affidavit they have ever filed in the proceeding to date or to seek to rely on affidavits handed up in Court at the start of the hearing.

  5. Practitioners should be aware that, for interim hearings, the Court will permit the parties to rely on one affidavit per witness, not to exceed ten pages of text. If a party seeks to hand up an affidavit on the morning of the hearing, it is quite likely that the Court will reject the document. As I recently said in Vedder & Colliss[13] at [56]:

    [13] [2014] FCA 2682

    If lawyers blatantly flout the Court’s directions in preparing matters for an interim hearing, they will face either rejection of the non-complying documents or an adjournment with costs. Let there be no mistake about that.      

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  19 December 2014


Key Legal Topics

Areas of Law

  • Family Law

  • Civil Procedure

Legal Concepts

  • Appeal

  • Jurisdiction

  • Natural Justice

  • Procedural Fairness

  • Remedies

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Portus and Storey [2013] FCCA 2395
Goode & Goode [2006] FamCA 1346