TEALLE & TEALLE
[2011] FMCAfam 495
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TEALLE & TEALLE | [2011] FMCAfam 495 |
| FAMILY LAW – Children – parenting orders – interim orders – best interests of the children – parental responsibility – equal shared parental responsibility – overnight time – two children aged four and two years – whether substantial and significant time with each parent is in children’s best interests. WORDS & PHRASES – “several” – more than two or three, but not many. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65DAA |
| Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 |
| Applicant: | MS TEALLE |
| Respondent: | MR TEALLE |
| File Number: | SYC 3974 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 17 May 2011 |
| Date of Last Submission: | 17 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 20 May 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Reid Family Lawyers |
| Solicitors for the Respondent: | Humphreys & Feather |
ORDERS
BY CONSENT UNTIL FURTHER ORDER
That the parties are to have equal shared parental responsibility for the children of the marriage X born (omitted) 2006 and Y born (omitted) 2008.
The children X and Y are to live with the mother.
AND IT IS FURTHER ORDERED UNTIL FURTHER ORDER
That the children live with the father as follows:
(a)In Week One of a two-weekly cycle commencing on Tuesday 24 May 2011:
(i)On Tuesday from directly after preschool finishes at 3:00 pm for X and 3:30 pm for Y until 4:30 pm on Wednesday; and
(ii)From 10:00 am on Saturday until 4:30 pm on Sunday;
(b)In Week Two on Tuesday from directly after preschool finishes at 3:00 pm for X and 3:30 pm for Y until 4:30 pm on Wednesday;
(c)From 9:00 until 4:30 pm on Father’s Day;
(d)For a period of three (3) hours from directly after school or preschool on the father’s birthday in 2012;
(e)On the children’s birthdays for a period of three (3) hours from directly after school or preschool if the day falls on a school day or for a period of six (6) hours if the day falls on a day that is not a school day and if the day is not a day when the children would not normally be living with the father as provided by these Orders;
(f)From 10:00 am on Christmas Eve until 10:00 am on Christmas Day in 2011; and
(g)At such other times as the parties shall agree.
From 25 November 2011 the time that the children live with the father in accordance with Order (3)(a)(ii) is to commence directly after school or preschool finishes on Friday.
Changeover between the parties is to take place at the children’s preschool or school as appropriate or otherwise at the Coles Supermarket at (omitted).
The parties are restrained by injunction from denigrating or criticising each other in the presence or hearing of the children or either of them.
The parties are restrained by injunction from discussing these proceedings with the children or either of them or in their presence.
The minute of order filed in Court today will be exhibit 3 until further order I make the following order:
That the children live with the father on the Friday before the weekend that they do not spend time with the Father from 12noon to 4pm.
By consent until further order until the children have telephone contact with the parent with whom they are not living between 5:30pm -6:30pm each evening by the party with whom the children are not living calling the other party’s mobile telephone number.
IT IS NOTED that publication of this judgment under the pseudonym Tealle & Tealle is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 3974 of 2010
| MS TEALLE |
Applicant
And
| MR TEALLE |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for interim parenting orders in respect of the parties’ two children, X, aged four and Y, aged two. The father wishes to spend more time with them, particularly overnight time, whilst the mother considers that the time between the girls and their father should be increased gradually, to allow them to get used to the idea of spending more time with him.
The Court has been assisted by the preparation of a Family Report by Dr V, which was released to the parties on the evening before the hearing. As a result, they have come to some agreement in principle, but the devil, as always, is in the detail.
Background
The parties commenced to live together in (omitted) 2003 and were married on (omitted) 2005.
There are two children of the marriage, both girls. X was born on (omitted) 2006. Y was born on (omitted) 2008.
The parties separated “in or about” January 2010[1] or “early January” 2010.[2] The children have remained living with the mother ever since.
[1] Affidavit of Mr Tealle 18.3.2011 at paragraph [5]
[2] Affidavit of Ms Tealle 22.12.2010 at paragraph [4]
The mother commenced property proceedings by means of an Application filed on 2nd August 2010. The father filed a Response on 3rd September 2010, in which he sought interim and final parenting orders as well as property orders.
The parties attended a Child Dispute Conference on Friday 24th September 2010. They reached a partial agreement that the children would spend time with the father from 11:30 am to 4:00 pm each Sunday and from 8:00 am to 11:30 am each Wednesday.
The parties also have property matters to resolve. They have attended a conciliation conference with a Registrar on 24th November 2010, where they came close to an agreement, but it did not result in consent orders. It is not unlikely that some of the tension between the parties arises out of the unresolved nature of the property issues, and a settlement of those issues might assist them in their dealings with each other about their children.
The current situation with the children has been in place since January this year. Both children now spend overnight time with the father. In December 2010 X, the older girl, began staying overnight with her father and this arrangement extended to Y in January this year.
The present arrangement is that the children spend time with their father:
a)From 3:00 and 3:30 pm on Tuesday until 4:00 pm on Wednesday in each week.
b)From 4:00 pm to 6:00 pm on Friday; and
c)From 9:00 am to 4:00 pm on Sunday
There have been some difficulties with this arrangement, and neither party believes that the Friday afternoon time is satisfactory. It is really too short to allow the father to spend any meaningful time with the girls.
Areas of Agreement
After the release of the Family Report, the parties engaged in discussions with their solicitors and reached some agreement. They have agreed that:
a)They should have equal shared parental responsibility for the children; and
b)The children should continue to live with the mother.
The parties have also agreed in principle that the girls should spend more time with the father on an overnight basis during the week and on alternate weekends, as well as some time on Father’s Day, on the children’s and the father’s birthday and at Christmas.
Issues
However, the parties are unable to meet as to the time when the children should be returned to their mother after spending time with their father, or what is an appropriate time to be spent with each parent at Christmas. The mother wants to have a holiday with the children in Easter 2012.
The Parties’ Proposals
The father wants to spend more time with the girls, especially overnight time. The mother wants the father’s time with the children to increase by incremental steps at a slower pace than the father does, in order to get the girls used to spending more time with the father.
The father would like increased time with the children, not only from 24th May, to which the mother agrees, but a further increase with effect from 28th August 2010. The mother believes that this is too precipitate, and that the next date should not be until 10th December 2011.
The father wants to return the children at 5:00 pm in the afternoon, but the mother believes that it should be 4:00 pm. The children have dinner at 5:30 pm and are in bed by 6:30 pm. If they are not returned until 5:00 pm their evening routine is thrown out.
The father concedes that the mother should have one entire weekend with the children each fortnight, but points out that there is, in his view, too long a gap between the times when he sees the girls in the second week of the fortnight, when the girls will be with their mother for the weekend. He would not see them from Wednesday afternoon until Tuesday afternoon, a gap of six days. He suggests that there should be some time with the girls on the Friday afternoon of the second week.
The Family Report
The Family Report was prepared by Dr V, who interviewed both parents and observed each of them with the children.
Dr V noted the parties’ complaints about each other and their history of conflict during the marriage.
The mother claimed that the father was controlling and dominating and prone to outbursts of temper.[3] The father claimed that the mother suffered from mood swings, which included aggressive behaviour.[4]
[3] Family Report paragraph [2]
[4] Ibid at [3]
Interestingly, when the children were observed with each of their parents, they showed a positive relationship with each one. The parents appear to have the ability to foster a loving and nurturing relationship with their children.
Regrettably, the parties were assessed as having a mistrustful and antagonistic relationship with each other. With a very limited ability to communicate about their children. Dr V had some critical comments to make:
Both parties demonstrated limited insight into the part they played in the breakdown of the relationship in spite of the counselling they received during their marriage and since. Unfortunately, they have become caught in a cycle of making allegations and counter allegations that the other was aggressive and verbally intimidating, had mental health problems and was controlling and possessive leading to a rather ambiguous set of circumstances surrounding their separation…
This has set the scene for a poor closure to the marriage and thereafter a troubled capacity on the part of the parties to communicate about the child related or property issues which seem to be co-implicated. Even though they acknowledge the shortcomings of not being able to communicate with each (other), their anger and mistrust is palpable and they seem unable to contain the angst that arises when they meet at changeover or even in their electronic communication. Their interaction on the day of the appointment was further evidence of their hostility towards each other and inability to communicate civilly. They are both on a path of seeking evidence which discredits each other as a parent because of the differences in their parenting styles and this renders them unable to see the positive qualities each has to offer the children. They have moved into a space where they are competing and trying to exercise power and control rather than co-operating as parents with their children’s needs as a focus. The extended family has also become involved in the dispute which is unfortunate. The impasse in Mr and Ms Tealle’s capacity to relate too each other in a child focused way creates a very poor climate for them to be able to assume joint parental responsibility for the children and to make decisions that are in their children’s best interests. Unless there are some significant changes, this does not augur well for their future capacity to co-parent and collaborate on the decisions they need to make for X and Y.[5]
[5] Family Report at [41]-[42]
I have quoted this passage at length as it should give both parties cause to reflect about effect their continued conflict may have on their children.
Dr V recommended that:
a)The parties continue working on their communication and working collaboratively in the interest of their children, possibly through referral to a skilled family therapist;
b)The children live with their mother and spend every Tuesday overnight with their father, and that they spend alternate Saturday evenings with their father with a view to extending this to include Friday evenings within a period of months;
c)The parties make a concerted effort to interact with each other respectfully at changeovers, or make alternative arrangements, such as using a neutral venue like the preschool; and
d)Both parties should refrain from involving the children in inappropriate and not child focused conversations or the other parent.[6]
[6] Family Report at [57]-[60]
Dr V made this suggestion about an extension of the children’s time with their father:
…any extension in the time the children spend with their father overnight occur in incremental steps i.e. the continuation of the Tuesday evening on a weekly basis plus one evening on alternate weekends increasing to two evenings within several months.[7]
[7] Ibid at [56]
The mother relies on the use of the word “several” to support her contention that the father’s proposal to increase the time he spends with the children overnight as and from 28th August this year is premature.
The Relevant Law
Section 60CA of the Family Law Act provides that, in deciding whether to make a parenting order, the Court must regard the best interests of the children as the paramount consideration. To determine what is in children’s best interests, the Court must consider the matters set out in subsections 60CC(2) (the primary considerations) and subsection 60CC(3) (which are referred to in the Act as “additional considerations”).
The Court is required by subsection 60CC(4) of the Act to consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent. Further, where the parties have separated, as they have in this case, the Court must have regard to events that have happened and circumstances that have existed since the separation occurred (see s.60CC(4A)).
I have considered all of those matters.
When making a parenting order, the Court is required by subsection 61DA(1) of the Act to apply a presumption that it is in children’s best interests for their parents to have equal shared parental responsibility for them (see Goode & Goode[8]).
[8] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
The presumption does not apply in cases of abuse or family violence (subsection 61DA(2)) and it may be rebutted by evidence that satisfies the Court that it would not be in the children’s best interests for their parents to have equal shared parental responsibility (see s.61DA(4)).
Subsection 61DA(3) provides that when the court is making an interim parenting order the presumption applies unless the Court considers that it would not be appropriate in the circumstances.
When a parenting order provides that children’s parents are to have equal shared parental responsibility for them, the Court is required by subsection 65DAA(1) to consider the reasonable practicality of the children spending equal time with each parent and whether it would be in the children’s best interests.
If the Court does not make such an order, subsection 65DAA(2) provides that the Court must consider:
a)whether spending substantial and significant time with each of their parents would be in the children’s best interests; and
b)whether it would be reasonably practicable.
I have considered all of these matters, also.
Conclusions
Here, the parties have consented to an order that they should have equal shared parental responsibility for the children, which is to their credit. They have also consented to an order that the two girls live with their mother.
What needs to be considered are the appropriate parenting orders to be made to cover the period between the present time and when the application can be heard on a final basis, which will be about a year away.
It is apparent from the Family Report that it is of benefit to the children to have a meaningful relationship with each of their parents:
…the children have a positive relationship with both parents and to members of their extended families. Their interaction with their mother was warm, nurturing and relaxed. They responded enthusiastically to their father who was also appropriate and responsive to them.[9]
[9] Family Report at [52]
There is no evidence of unacceptable risk of physical or psychological harm to the children from being subjected to, or exposed to, abuse, neglect or family violence. That said, the children may well suffer anxiety of the parents display sign of conflict and antagonism in their presence.
The children are too young for their views to be sought or ascertained, although the writer of the Family Report observed their positive and loving interaction with each parent.
The Family Report speaks of the children’s positive relationship with their parents and extended families.
The father feels that the mother at times lacks the willingness and ability to facilitate and encourage a close and continuing relationship between the girls and himself, which the mother denies. She states that she wishes to encourage the girls’ relationship with their father, but in a way that will not cause them anxiety or uncertainty.
The likely effect of a change in the children’s circumstances by increasing the children’s time with their father will be beneficial as long as it takes place gradually with encouragement and reassurance from the children’s mother.
The only practical difficulty of the children spending time with or communicating with their father would appear to arise from the parents’ antagonistic relationship to each other, which is not conducive to co-operation in making arrangements for the children.
Each parent appears to have a capacity to provide for the children’s needs, including their emotional needs.
The children are two little girls, aged four years and two years. X was born on (omitted) 2006, so she is currently four years and nine months old. Y was born on (omitted) 2008. She is therefore two years and six months.
X is at preschool, which is where her father collects her on Tuesday afternoons. She should be old enough to start school next year. Y is too little for preschool at present, although she would be old enough to start in 2012. Her father collects her from her mother at the Coles supermarket at (omitted).
The parties have a positive attitude to their children, but would do well to remember that one of the responsibilities of parenthood is encouraging the children’s relationship with the other parent.
There were mutual allegations of verbal aggression whilst the parties lived together but family violence is not an issue.
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 only way that appears to be applicable is to follow the recommendations of the Family Consultant who prepared the Family Report and make orders that are in the children’s best interests. I am mindful of the fact that these are interim proceedings and the Court will be listing the application for final hearing, which will involve an updated Family Report.
The parties have separated. The mother has apparently formed a new relationship, although she was unwilling to disclose this fact to Dr V.[10] The father was similarly reticent[11] although the Court was advised that he was not in a relationship. The parties should be aware that if they have formed new relationships before the final hearing they need to disclose them to the Court.
[10] Family Report at [7]
[11] Ibid at [8]
I am satisfied that the children should spend overnight time with their father from Tuesday after preschool (in X’s case) and 3:30 pm (in the case of Y) until the Wednesday afternoon. The parties could not agree whether the girls should go back to their mother at 4:00 pm or 5:00 pm. I have settled on 4:30 pm, which is not just a “split the difference” approach but a recognition of the fact that the girls are still only young and their mother gives them a relatively early evening meal and tries to have them in bed by 6:30 pm. It will not assist the children if they have a rushed evening meal before bed whenever they have returned from staying with their father because it will only increase the mother’s resentment of the father and cause the children some anxiety.
It is only reasonable that the mother should have a weekend with the children, just as the father will have. It is easy to sympathise with the father’s complaint that in the “off week”, when he does not have the girls for the weekend, there will be a period of six days before he sees them again. However, the only day suggested was the Friday afternoon, which has already been tried and found to be unsatisfactory. There is just not enough time, as the father would only have an hour or so with Y and not much longer with X. An arrangement of that nature is not in the children’s best interests.
It is in the children’s best interests that they should spend time with their father on Father’s Day, on his birthday and on their birthdays. These are occasions of significance to children and their parents.
It has been recommended that the children’s overnight time with their father can be increased to start on the Friday evening “within several months”. The father wants the increase to commence as and from 28th August but the mother says that is too soon and nominates the 10th December as a more appropriate date. Her contention is that the word “several” means more than the three months or so that the father proposes.
Since it appears to be necessary for the Court to rule on matters of detail where the parties cannot agree, the word “several” is defined as “being more than two or three, but not many”[12] by the Macquarie Dictionary. In my view, without being overly pedantic, and considering the ages of the children, the 25th November 2011 is an appropriate starting date. X will have turned five and Y will have turned three. I am satisfied that they will be old enough by then to spend an extra night a fortnight with their father, provided that each parent takes an encouraging and reassuring approach to the issue.
[12] Macquarie Dictionary, Revised Third Edition, Sydney , 2001
The arrangements for Christmas need to be considered with a clean slate. It is not helpful to point to arrangements for Christmas in 2010, because the children were not spending time overnight with their father at that time. Christmas arrangements need to be alternated each year, and each parent needs to have the experience of having the children wake up on Christmas Day to see what surprises there are in store.
I have not made any orders about Easter. In most years, including 2012, Easter falls within the school holidays. 2011 was an unusual occurrence, when Easter fell so late in April. Arrangements for Easter in 2012 should be considered as part of school holiday time, because X will be old enough to start school in 2012.
As the parents have agreed to equal shared parental responsibility for the children, the Court must consider the question of the children spending equal time with each parent. This arrangement would not be workable because of the parents’ high degree of conflict and low level of communication. The mother has been the girls’ primary caregiver and the girls are too young to be away from her for the equivalent of seven days a fortnight.
It is well established that young children do not fare well in an equal time arrangement between parents in high conflict. Equal time is not in the children’s best interests.
The orders I propose to make would fall somewhat short of “substantial and significant time” with the father, as defined by s.65DAA(3). However, the same considerations apply. The children are too young. The parents’ level of communication and co-operation is too low. It is not in the children’s best interests, even if it were reasonably practicable.
It is in the best interests of the children if their parents can co-operate with each other and encourage and support the children’s relationship with the other parent. It is clear that each party has a lot to offer to the children as a parent, and it would assist the children if the parties were able to respect that quality in the other parent. Dr V was able to see that in each parent. They need to see it in each other.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 20 May 2011