SUMMERVILLE & AUSTIN

[2015] FCCA 813

FEDERAL CIRCUIT COURT OF AUSTRALIA

SUMMERVILLE & AUSTIN [2015] FCCA 813

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – best interests of the children – where father seeks additional time with the children.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Applicant: MR SUMMERVILLE

Respondent: MS AUSTIN

File Number: SYC 5127 of 2013

Judgment of: Judge Scarlett

Hearing date: 16 March 2015

Date of Last Submission: 16 March 2015

Delivered at: Sydney

Delivered on: 18 March 2015

REPRESENTATION

Counsel for the Applicant: Ms Petrie

Solicitors for the Applicant: Blanchfield Nicholls Partners

Counsel for the Respondent: Ms Christie

Solicitors for the Respondent: Newnhams Solicitors

ORDERS

1. The children X born on (omitted) 2004 and Y born on (omitted) 2006 are to spend time with the Applicant father during the school term as follows:

   (a)From immediately after school each Thursday or 3:00 pm if the day is not a school day until the commencement of school on the Friday or 9:00 am if the day is not a school day;

   (b)Each alternate weekend from immediately after school on Friday or 3:00 pm if the day is not a school day until 7:00 pm on the Sunday; and

   (c)Such further or other times as the parties may agree in writing.  

2. The Application is listed for Final Hearing at 10:00am on 12 April 2016 to continue until 13 April 2016.

3. The Applicant is to pay the setting-down fee or obtain a reduction of that fee by 1 April 2016.

4. The parties are to file and serve all affidavits upon which they seek to rely no later than 1 April 2016 and no affidavits will be accepted for filing after that date without leave of the Court.

5. The parties are to advise the Court no later than 1 March 2016 whether the Family Consultant who prepared the Family Report will be required for cross-examination.

6. Any application for costs must be made within 28 days by written submissions.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 5127 of 2013

MR SUMMERVILLE

Applicant

And

MS AUSTIN

Respondent

REASONS FOR JUDGMENT

1. The Application is in the list today for a decision on a particular issue.  It is an application by the father of the parties’ two daughters, X, who is aged 11, and Y, who is aged nearly nine, for variation of earlier interim parenting orders that were made by consent on 15 December 2014.  The matter was before the Court on Monday.  The parties were represented by Counsel as well as by their solicitors and negotiated some consent parenting orders, which were quite extensive and quite helpful. 

2. Those orders provided for equal shared parental responsibility, the children to live with their mother, certain matters relating to changeover, pickup and delivery of the children, time with the father during school holidays, time with the parents on various special occasions, including Good Friday, Easter Sunday, at Christmas, on the children’s birthdays, on Father’s Day, on Mother’s Day and other events of that nature. 

3. There were also arrangements agreed to about international and domestic travel for the children with their parents, including an order permitting the mother to take the children to (country omitted) in late September and early October.  The parents agreed to orders about passports, communication, education at (omitted) Primary School and (omitted) College.  It is to the credit of the parties that they were able to agree to those extensive orders when the matter was before the Court on Monday. 

4. I made those orders by consent, but it was put to me that there was one area where the parties were unable to agree.

Orders Sought 

1. That involved an application by the father for the children to spend a bit more time with him on alternate weekends during the school term.  Ms Petrie of Counsel, who appeared for the father, submitted a minute of interim orders sought that would provide for the children to spend time with their father during the school term in the first week of the fortnight from after school, or 3 o’clock, if it is on a non-school day, on a Thursday to the following Friday morning, and in the second week – and herein lies the controversy – from after school on Thursday for the weekend, but with the return to be on the Monday morning with the view that the father would arrange for the children to go directly to school. 

2. That is a not uncommon arrangement, but it was not one to which the mother agreed.  The mother’s proposal in respect of those alternate weekends was that the children would continue to be returned to her at 7 o’clock on the Sunday night rather than on the Monday morning.  Now, why should it be that there should be a change to those arrangements?  I heard submissions from both counsel.  The father relied on his affidavit of 4 March and the affidavit of his partner, Ms N, also dated on 4 March, and I was referred by Counsel to particular paragraphs.  The mother relied on her affidavit sworn on 6 March and, again, I was referred by Ms Christie of Counsel, who appeared for the mother, to various paragraphs of the mother’s affidavit. 

3. Why should there be such controversy between the parties on what, on its face, appeared to be a relatively minor change, an extra night with the father?  That is the question that the Court needed to decide.  It is fair to say that each party provided cogent reasons for the orders that they sought.  It was the father’s position that returning the children to school rather than to their mother would remove the possibility of there to be cross words or unpleasantness at changeover because the parties would not have to meet.  It certainly appears to be the case that, notwithstanding the great degree of cooperation expressed in the consent orders which I made on Monday, the communication between the parties left a bit to be desired.  The father complained that the mother was not forthcoming in negotiations and he considered that there was a degree of inflexibility in her outlook. 

4. It is also quite clear from the father’s affidavit that the children say that they want to spend more time with their father.  This is certainly a point that needs to be considered.  And the fact that the children do want to spend more time with their father is a fairly clear indication of the strength of the relationship between the children and their father.  It is also an indication that the children’s relationship with the father’s partner is, indeed, a positive one. 

5. However, Counsel for the mother drew the Court’s attention to the fact of the mother’s working arrangements.  The mother works four days a week and does not work on a Monday.  The father – there is no doubt about this – works a nine day fortnight.  The nine day fortnight allows him to have the second Friday of each week as a rostered day off and certainly it can be seen that the arrangements proposed and which, in fact, have been happening, I gather, since before Christmas means that on the father’s Friday off the children have been with him overnight on the Thursday, he organises them to school and in the afternoon they come home from school to him and spend the weekend with him. 

6. The Monday, however, is the mother’s day when she does not work and she is, therefore, available to spend time with the children.  Now, it can be argued that, even if the father is obliged to go to work on a Monday morning, his partner, with whom there appears to be no issue whatsoever that the children have a good relationship, is quite able to deliver the children to school.  Those, then, are the competing propositions and, as I understand it, the reasons for them.

Applications for Parenting Orders 

1. In any application for parenting orders, the Court must consider various sections of the Family Law Act 1975 (Cth) set out in Part VII of that Act, in particular:

   a)section 60B that relates to the objects and principles of Part VII;

   b)section 60CA that provides that the best interests of the children must be the paramount consideration;

   c)section 60CC, which is the section in subsections (2) and (3) that assists the Court in determining what matters are in the children’s best interests;

   d)section 61DA that relates to the presumption of equal shared parental responsibility and whether there are circumstances where it does not apply or where it would not be in the children’s best interests for it to apply; and

   e)section 65DAA, which must be considered in circumstances where the Court has made an order for equal shared parental responsibility.

Conclusions

1. As far as section 61DA is concerned, the task for the Court is easy because the parties have already agreed to equal shared parental responsibility, and it would seem to me on the evidence that that is highly appropriate. Whilst the Court would be required under section 65DAA to consider whether an equal time arrangement is in the children’s bests interests and reasonably practicable, the father is not asking on an interim basis that such an order be made. The Court must also consider substantial and significant time, and it would appear to me, whatever decision the Court makes in respect of this particular issue, that the arrangements to which the parties have agreed set out in the well-considered consent orders would come within the definition of substantial and significant time. So, in my view, the requirements of section 65DAA have been taken into account.

2. That gets me back to the best interests of the children being the paramount consideration, and the matters set out in section 60CC. This is not a case where there are allegations that the children are at risk of harm or abuse. This is not a case where the Court would not be satisfied about the benefit to the children of having a meaningful relationship with each parent. It is clear that they already do. This is not a violence case. This is a case where the evidence appears to be, notwithstanding the difficulties in communication between the parties, that the children have good relationships with each parent and indeed with the father’s partner.

3. What, then, is the decision that should be made in the best interests of the children?  It seems to me that it goes clearly back to the work arrangements of the parties.  It may well be that the children express a wish to spend more time with their father, and that is a matter that will certainly be considered at the final hearing. 

4. It may well be that the father is of the view that the mother is unwilling to negotiate or communicate with him, but certainly the evidence is that with the assistance of their legal advisors, the parties have been able to come to comprehensive and sensible parenting orders by consent, which deal with most of the outstanding issues between them, and indeed, I made such orders on Monday.  Had I not been of the view that those orders were in the children’s best interests, I would not of course have made those orders, but it was patently obvious the orders that the parties had agreed to are most definitely intended to be in the best interests of the children. 

5. It certainly makes sense that on the father’s rostered day off, the second Friday of each fortnight, the children should be with him.  But the father’s proposal to increase the weekend time to include the Monday morning cuts into the mother’s rostered day off, because on the evidence she does not work on a Monday.  Whilst there is certainly a benefit to the children in spending overnight time with their father on the Sunday, and it is not in issue, and certainly has not been put to the Court, that overnight time at their father’s residence is a bad thing for the children.  Quite the reverse.  The problem is that the Monday is the mother’s day when she is not at work and she is available to spend time with the children.  She can get the children ready for school on the Monday, she can take them to school, and it seems to me that that is clearly her time. 

6. Were it not for the fact that the mother’s non-work day is a Monday, I would have been persuaded to accede to the father’s application.  However, the fact that the mother does not work on a Monday and is available for the care of the children from the moment they wake up on the Monday morning, persuades me that on an interim basis I should not grant the father’s application, but that I should make the orders proposed by the mother. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  7 April 2015