Stott and Stott

[2007] FamCA 232

FAMILY COURT OF AUSTRALIA

STOTT & STOTT [2007] FamCA 232

FAMILY LAW - CHILDREN - Undefended final hearing - Children’s issues

Family Law Act 1975

Applicant: MRS STOTT

Respondent: MR STOTT

Independent Children’s Lawyer: T J Mulvany

File Number: MLF 7267 of 1999

Date Delivered: 5 March 2007

Place Delivered: Melbourne

Judgment Of: Carter J

Hearing Date: 5 March 2007

Representation

The Applicant: In person

Address for the applicant:

Counsel for the Respondent: Ms I.R. Braun

Solicitor for the Respondent: McGuinness & Hosking

Independent Children’s Lawyer: Mr T J Mulvany

Orders

1. That all previous parenting orders be discharged.

2. That the husband and the wife retain joint parental responsibility for all long term issues in relation to the care, welfare and development of the children of the marriage, the elder son born in November 1996 and a younger son born in August 1998 (“the children”).

3. That each of the husband and the wife be responsible for the day to day care, welfare and development of the children when the children are in their immediate care.

4. That the children reside with the husband.  

5. That the children spend time and communicate with the wife as follows:

   (A)During school term:

   a)each alternate weekend from cessation of school on Friday until 6 p.m. Sunday, such alternate weekend being extended to include any Friday or Monday which will be a public holiday or a student free school day;

   b)subject to the wife confirming her attendance on alternate Wednesdays by telephoning the husband between 6 p.m. and 8 p.m. the preceding day, each alternate Wednesday from cessation of school until 7 p.m. provided always that the children shall remain within the radius of 40km of the R police station and further provided that if the wife shall not have collected the children by 3:45 p.m. on any such occasion that particular occasion shall be deemed to not be occurring and the husband or his agent shall be at liberty to collect the children;

   c)such further and other times as shall be agreed.

   (B)For one half of all school holidays of the children and in the event of any dispute as to the relevant period the children shall spend time with the wife during the first half of such period commencing no earlier than 12 noon on the day following cessation of school term. 

   (C)Appropriate variations in relation to residence and the time spent with the wife to ensure the following:

   a)that the children spend from 6 p.m. on the eve of Mother’s Day until 6 p.m. on Mother’s Day with the wife;

   b)that the children spend from 6 p.m. on the eve of Father’s Day until 6 p.m. on Father’s Day with the husband;

   c)that if the birthday of a child is on a school day each parent be entitled to spend a minimum of one and a half hours with the child on the child’s birthday at times to be agreed and if a non-school day three hours with the child on the child’s birthday at times to be agreed;

   d)from 3 p.m. 25 December 2007 to 3 p.m. 26 December 2007 and each alternate year thereafter with the wife to deliver the children to the husband at 3 p.m. Christmas Eve;

   e)from 3 p.m. on 24 December 2008 (noting the children will be with the wife on 23 December 2008) to 3 p.m. 25 December 2008 and each alternate year thereafter with the wife to deliver the children;

6. For the purposes of the children spending time with the wife during school term, unless otherwise agreed between the Husband and the Wife, the alternate weekend contact cycle shall commence on the first weekend of each school term.

7. Until otherwise ordered by a Court or agreed to between the parties, the children are to continue attending B Primary School for their primary education.

8. That the wife be at liberty, with any costs being that of the wife, to authorise the Principal of B Primary School to provide to the wife the following:

   a)copies of all school reports;

   b)notification of parent teacher interviews with the wife being at liberty to request a separate interview to that of the husband;

   c)notification of special events including but not limited to sports day, concerts, play and like events.

9. That the husband and the wife keep each other appraised of their respective telephone number and addresses.

10. That any party, including the Independent Children’s Lawyer, be at liberty to provide a copy of this order to the Principal of B Primary School and to any medical practitioner and/or allied health professional assisting either or both of the children.

11. That each of the Husband and the Wife for themselves, their servants and agents, such servants and agents to include any member of their respective households, be and are hereby restrained from denigrating, criticising, harassing and/or arguing with the other in the sight and/or presence and/or hearing of either or both of the children.

12. That the appointment of the Independent Children’s Lawyer be discharged.

13. That all extant applications and proceedings be otherwise dismissed and all matters be removed from the Active Pending Cases List maintained by the Court.

14. That as soon as practicable the Independent Children’s Lawyer provide a copy of this order to the Wife at her last known residential address by forwarding same to her by ordinary mail.

15. That pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

16. That all documents produced on subpoena be returned to the person or institution providing the same.

IT IS CERTIFIED

1. That pursuant to r 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 7667  of 1999

MRS STOTT

Applicant

and

MR STOTT

Respondent

and

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The parties have been unable to resolve their dispute as to the arrangements that should be made for their children’s welfare until relatively recently.  Those two children are the elder son who was born in November 1996 and a younger son who was born on in August 1998.  The elder son is 10 and the younger is eight.

2. The proceedings have been in Court since 2003, and were awaiting a final hearing.  Their case which was included in the list of cases to be heard in what was conveniently called the “Blitz” in February or March of this year.

3. To that end a Pre-Trial Conference was convened on 1 November 2006.  At that stage both the husband and the wife (as I will for convenience continue to refer to them), had filed their documents in readiness for trial, and had filed Undertakings as to Disclosure.  At the Pre-Trial Conference orders were made which provided for the case to be referred to a callover with a view to having it fixed in the March sittings.  Amongst other orders that were made was one for an updated Family Report to be prepared by Mr B for the trial.  That report was in due course prepared, and, together with an earlier report of Mr B, was annexed to his affidavit filed 1 March 2007.

4. The second report is the one which I will mention at this stage, although that is not to say that I have not of course had regard to the first report.  I briefly note that the wife had told Mr B at the time when arrangements were being made for the time of the interview, that the children should remain with her and that she did not want to be continually harassed - to use her words - by the husband, with further court appearances.  However, she later said she had changed her mind and wanted the husband to have primary care of the children because she could not cope with more court appearances.

5. Mr B interviewed the children and the husband, and did not formally interview the wife although she did telephone him at a time when he was waiting to interview her and the boys.  In due course what happened was that the children came to live with their father.  The circumstances are set out in an affidavit filed on behalf of the husband on 1 February 2007.  There was unfortunately an incident after that which involved an attempt by the wife to have the children returned to her, but in the event when that affidavit was filed together with an Application in a Case, I considered the matter at the callover which I conducted on 7 February and I made interim orders in relation to the arrangements for the children at that stage.

6. I should note here that a solicitor appeared for the wife at the time.  However she sought leave to withdraw and was in due course released.  But prior to that she was good enough to remain at court and heard the matters which were discussed and which were the subject of the first set of orders that I made on 7 February.  I say the first set because I made further orders which were related to further preparation for trial.

7. One of the orders that I made was for the Independent Children’s Lawyer to notify the mother by forwarding a copy of the order to her at the last known residential address.  Mr Mulvany who is, and appears in his own right as, the Independent Children’s Lawyer has informed me today that he did do that the day following the callover.

8. Further, on 27 February this year, he forwarded copies of his proposals to both the parents and on 28 February forwarded copies of his Outline of Case Argument to both parents.  I have also been told from the Bar table - though it is not a matter of controversy - that the children spent last weekend with their mother and seemingly had, at least on balance, an enjoyable experience.

9. The mother was called twice, firstly at the beginning of the case, and again after Mr Mulvany and Ms Braun who appears for the husband had conferred to tidy up some minor aspects of the proposed orders.  The wife has not responded.

10. I have had the benefit of a Case Summary and Summary of Argument document filed on behalf of the Independent Children’s Lawyer, and also similar documents filed on behalf of the husband.  For the sake of completeness I should note that the wife's former solicitors filed a Notice of Ceasing to Act on 20 February 2007.

11. In Goode v Goode (2006) FCA 1346 the Full Court consisting of the Chief Justice and their Honours Finn and Boland JJ, heard what was the first case to be decided by the Full Court about the meaning and effect of the amendments to the Family Law Act (1975) which followed the commencement of the Shared Parental Responsibility Act (2006).

12. They delivered their judgment on 15 December 2006.  It is I think still unreported but I suspect it will be reported in due course.

13. Given the circumstances of the present case as it now comes before me, I will simply refer briefly to what their Honours said in Goode.  The case is of particular relevance to matters involving interim arrangements for children and the principles in Cowling's case which has hitherto been the most important case affecting such matters.  But in the course of their judgment their Honours, conveniently for judges at first instance, provided a summary of the amendments and the effect of them to Part VIII of the Act.

14. In par 65 the Full Court had this to say:

    “65.     In summary, the amendments to Part VII have the following effect:

    1.   Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child.  “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

    2.   The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility.  That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and s 61DA(2)). 

    3.   If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and s 61DA(3)).

    4.   The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

    5.   When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents.  If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)). 

    6.   The Act provides guidance as to the meaning of “substantial and significant time” (ss 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).

    7.   The concept of “substantial and significant” time is defined in s 65DAA to mean:

    (a)      the time the child spends with the parent includes both:

    (i)       days that fall on weekends and holidays; and

    (ii)      days that do not fall on weekends and holidays; and

    (b)      the time the child spends with the parent allows the parent to be involved in:

    (i)       the child’s daily routine; and

    (ii)      occasions and events that are of particular significance to the child; and

    (c)      the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

    8.   Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

    9.   The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

    10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents.  These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

    11. The child’s best interests remain the overriding consideration.”

15. I have read and with respect agree with the contentions listed by the Independent Children’s Lawyer commencing at p 7 of the Case Outline and Summary of Argument document in relation to the primary considerations and the additional considerations, and I adopt those submissions.  I also note that as far as the final orders are concerned, there will be an order for the parents to retain joint parental responsibility.  That of course is something which is limited to decision-making and does not have any effect so far as time spent is concerned save that if an order is made or the presumption of equal shared responsibility is applied, then the Court is required as a consequence to give consideration to making an order that the children spend equal time with each of the parents.

16. However, if equal time is not in the interests of the children, or reasonably practicable, the Court then is required to go on to consider making an order, if it is consistent with the best interests of the child or children and reasonably practicable, for the child to spend substantially significant time with each of the parents.  “Substantially significant time” is considered in the Act which provides guidance as to what it means.  It is defined in s 65DAA.  The orders which are proposed, provided the mother chooses to exercise them, do provide for substantial and significant time to be spent by the children with their mother.

17. This is a case where it is not consistent with the best interests of the children and certainly not reasonably practicable for them to spend equal time with each of their parents.  I am satisfied that the orders which are proposed present the best possible outcome for the children and are in their best interests and I will make those orders as set out in the amended Minutes.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carter.

Associate:     

Date:              19 March 2007

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