VELIZ & VELIZ

[2014] FamCA 667

FAMILY COURT OF AUSTRALIA

VELIZ & VELIZ [2014] FamCA 667

FAMILY LAW – CHILDREN – Interim Parenting – Where there are two children of the marriage aged two and six – Where the father sought an increase in time he has with the younger child – Where the father sought to take both children overseas for a block period of one week – Where the mother sought a slight decrease in time the younger child spends with the father and then a continuation of the current time arrangement –Where the mother opposed the younger child travelling overseas with the father – Where it is determined that the current time arrangement is in the best interests of the children – Where orders are made allowing the older child to travel overseas with the father.

Family Law Act 1975 (Cth)

APPLICANT: Mr Veliz

RESPONDENT: Ms Veliz

FILE NUMBER: SYC 3225 of 2012

DATE DELIVERED: 7 July 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 7 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey

SOLICITOR FOR THE APPLICANT: Dimocks Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Sansom

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

Orders

1. Until further order, the child B born … 2007 (“B”) live with the father from 3.00 pm Monday to 3.00 pm Monday except between 3.00 pm Wednesday and 3.00 pm Friday in one week and from 3.00 pm Wednesday to 3.00 pm to Friday in the second week.

2. Until further order, the child C born … 2011 (“C”) live with the father from 3.00 pm Tuesday to 3.00 pm Wednesday and from 9.00 am Saturday to 3.00 pm Monday in one week and 3.00 pm Wednesday to 3.00 pm Friday in the second week.

3. Otherwise unless the parties agree the children are to live with the mother.

4. By consent, the father be permitted to travel overseas or within Australia with B for a block period of two weeks per annum unless the parties otherwise agree that is to be during school holidays and on the condition that the father provides the mother with 28 days written notice of his intention to travel, a copy of the itinerary and contact details for accommodation, and that the father cause B to communicate with the mother by telephone or Skype twice a week at such time as the mother may nominate.

5. The mother is permitted to travel overseas or within Australia with the children on no more than one occasion per annum for a block period of two weeks provided:

   5.1The time occurs during school holiday periods;

   5.2The mother provides the father with 28 days’ written notice of her intention to travel;

   5.3The mother provides a copy of the itinerary to the father as well as contact details of where the children will be staying ; and

   5.4The mother will cause the children to communicate with the father by telephone or Skype twice per week at such Australian Eastern time as the father may nominate (except where the mother and children are in transit at such time).

1. Pursuant to s 62B and s 65DA(2) 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Veliz & Veliz has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3225 of 2012

Mr Veliz

Applicant

And

Ms Veliz

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings in relation to two children, B and C, born in 2007 and 2011.  They are six years and two years of age, respectively.  The mother and father are 35 and 45 years of age respectively.  They were married in 2005 and separated in May 2012.  These proceedings were commenced in June 2012.  It seems like there was a false start with an application by the wife and then, later, an application in December by the husband.  There are also property proceedings, I understand, between the parties. 

2. The proceedings were commenced in the Federal Magistrates Court, as it then was, and transferred to this court in March of this year.  The parties have had a conciliation conference but the matter has yet to be placed in the pool of cases awaiting allocation of a first date for commencement of a trial, and I assume that is because something has yet to be done by way of procedural matter. 

3. Fortunately, in the context of preparation in the Federal Circuit Court, a report was prepared by a Regulation 7 report writer and the parties have had the assistance of that report.  These are interim proceedings in relation to parenting arrangements.  There has been an earlier issue, dealt with by the senior registrar, going to an application in relation to holidays within Australia and I understood the father’ s application might have been refused in relation to some block time. 

4. The matter is one of narrow compass.  The father wants an increase in the time he has with the younger child, and the mother wants a slight decrease for a short period and then the same sort of time that is happening now.  The father would like to take both children, either to City E in October or to the West Coast of the Country D at Christmas time, and the mother is happy for the older child to go.  She expresses it in terms of one trip of up to two weeks a year, and she’s asking for reciprocal orders, but she opposes C going overseas. 

5. The legislation sets out a pathway for dealing with parenting proceedings.  It starts with parental responsibility, and I think the parties have indicated that they will ultimately seek equal shared parental responsibility.  If the Court makes or is going to make such an order, it is required to consider with a view to ordering, equal time, unless there are some disqualifying factors.  And if it does not order that, it is to consider with a view to ordering substantial and significant time.  The legislation sets out criteria as to how one decides what is in the best interests of a child.

6. The legislation changed, with effect from 7 June 2012.  These proceedings were commenced before that date and so the section which applies is the section as it was before those amendments took place.  It affects nothing that really matters for the purposes of these proceedings.  There later amendment introduced a priority between primary considerations, favouring concerns about damage to a child through abuse; and the definition of abuse is different, and one of the criteria in the additional considerations is different, sometimes described as the friendly parent provision, was changed in the later version of the Act. 

7. The Court’s power is to make orders in relation to parenting.  In some cases, there needs to be an interim order and the legislation provides some latitude in relation to what is a labyrinthine process for interim proceedings.  Authority has it that some latitude is also allowed, although not a whole lot.  It is accepted that often an arrangement that is in place will be left in place in the interim, for example.  The unusual aspect of this case is that neither of the parties seeks that the arrangement that is in place, the status quo, continue.

8. The process, including the expert evidence, is focused at a final hearing and in a final hearing there can be testing of evidence, including of an expert’s opinion, and some sophistication can be brought to bear in terms of the arrangements, living arrangements or decision-making arrangements, for a child.

9. There has been reference today to trial by counsellor’s report and that is a concern in relation to interim proceedings.  It would be very unfortunate if a court puts in place something that was recommended by a report writer on an interim basis when the report writer might change his or her mind at a final trial or the substratum of facts that founded the reporter’s opinion might change in the course of a final trial.

10. Traditionally, the Court, and some reference has also been made to this, has acted conservatively in relation to children and, in fact, in relation to most aspects of the Court’s jurisdiction on an interim basis.  Apart from anything else, the report writer prepared a report for a final trial and it may even be that the report writer would not have been sanguine about the words she wrote simply being adopted by a court in the interim and without any opportunity for testing.

11. The other aspect of the case is that the parties have agreed that there will be an equal time arrangement in the future for these children.  That speaks of a good relationship between the parents.  It speaks of some mutual respect for the parties’ parenting capacity.  Such an agreement is not enforceable, of course, but it suggests that some of the problems that one might expect between parents do not exist in the circumstances of this case.  As to equal time, the father seeks movement in reasonably short order to an equal time arrangement, I think from May next year he seeks close to an equal time arrangement. 

12. Much has been said about what the Court will usually do.  I was asked earlier today to read a document that I understand referred to research from the Country D which is said to challenge some research in Australia which is said to be relevant to opinions expressed by the report writer here.  There is mention of C’s age in the family report.  It is not remarkable that different arrangements are put in place for young children.  I do not think it is controversial to say that the appropriate pattern of living arrangements for very young children is generally accepted to be a different pattern to one that is appropriate for older children.

13. Now, of course, in intact families people do all sorts of things and we are only in this situation because the parties have separated.  If they were together, they would have sorted some things out.  They may well disagree still about when a young child should be away from one of the parents, perhaps the primary caregiver, for a longer period.  They might disagree about when a child would be old enough to undertake overseas travel, but often not, and certainly in intact families there are living arrangements that would be rarely imposed by a Court in the context of a separated couple.

14. As is seen in this case, even with two parents where there is no real pathology identified by either of them in the other, there are still suspicions and concerns about the motivation of the other.  I think probably the proposals that the parties have on both sides would amount to substantial and significant time, which is the position that the Court is to consider with a view to ordering if it does not order equal time.

15. Substantial and significant time is defined to be time a child spends with a parent, including days that fall on the weekend and holidays and days that do not; time that allows a parent to be involved in the child’s daily routine and in occasions and events that are of particular significance to the child and, vice versa, time that allows the child to be involved in occasions and events that are of special significance to a parent.  The Court is to consider whether a particular arrangement is in a child’s best interests and reasonably practicable. 

16. The father might say that his parents’ wedding anniversary in October and the family Christmas are events of special significance for him, and if C cannot be there, then he will not be involved in events of significance to his father.  I note however, that the father does not propose both events, so on his own case the children would miss out on one of those occasions.

17. One determines what is in the best interests of a child by reference to section 60CC.  I am not permitted to make findings of fact on disputed issues of fact in interim proceedings unless there is clear evidence, authoritative independent evidence of something indicating that one case is preferred or excluding.  As in most interim cases, we have a dearth of that material.  The reality is there is no way of knowing what would be in the best interests of these children.  The legislation does its best, and the litigation process has a system whereby the parties’ evidence and their witnesses’ evidence is tested at a trial, and there is evidence from an expert social scientist and that evidence is tested at a trial.  We do not have the opportunity to do any of those things in these proceedings.

18. As to the primary considerations, the benefit of a child having a meaningful relationship with both parents and the need to protect a child from physical or psychological harm caused by being exposed to abuse, neglect or family violence, there is no doubt that there is meaning in the relationship between the children and each of the parents.  That is the subtext of what they have done during the marriage and since.  There is no suggestion, otherwise than the fact that they are moving to an equal time arrangement and equal shared parental responsibility.  There is no suggestion of physical or psychological harm from abuse, neglect or family violence.  The additional considerations, the views expressed by the children – the children probably would like their parents to live together again.  It is not going to be relevant.  There is no independent evidence of an expression of opinion from the children about the arrangements that I am asked to consider.  Even if there was, the children are not of an age where those opinions would be of significance.

19. There is a reference in the expert’s report to B addressing the lack of furniture in her father’s house.  The expert says something about her being careful about traversing that material.  It just demonstrates that the parties have exposed their six year old daughter to one small aspect of the breakdown of their relationship.  She should not have to worry about things like that.  As to the relationships of the children with each of the parents – they are very good.  There is some evidence that suggests that the mother might have been the primary caregiver of the children.  For example, the parties have moved between the Country D and Australia, but there was a point where the father went back to Country D for work.  He did not take the children with him.  The children remained here with the mother.  I am not saying that is unusual, but it suggests that as between the parents there was an acceptance at least that it was not inappropriate that the children remain here with the mother.

20. As to the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent – the report writer says the father is suspicious that the mother is trying to interfere with his relationship with the children.

21. The likely effect of changes – this is really the issue that both counsel have focused on.  The mother being a bit concerned about the separation of C from her and perhaps that more than the fact of the travel itself.  We do not know what the impact would be.  There is reference in the report to taking a conservative approach.  I think the father’s case is, “Why not?”, which is quite a legitimate argument, and, as I say, we do not know.  It could be terrific.  It could be better than arrangements are now, but there is absolutely no evidence that that is true.  The travel is not recommended by the report writer.  The parents disagree about it, and I cannot know. 

22. As to the practical difficulty and expense of arrangements – there is nothing really raised in relation to that.  I suppose the practical issues are the father works like a coal miner.  He is linked to the Country D work day, and so he works through the Australian night.  It is not suggested that that makes a difference to whether he would have the children overnight.  It is just an issue that is raised, I guess, as a doubt in relation to increasing time for the boy.  There is a minor reference to children’s hair not being done and whatever.  As I say, we are scrapping around for something to complain about in a parenting case like this with those issues, but that is a practical issue.  Reference is made to support the father had from his mother around the time of the interviews when the report is done.  That assistance is not available all the time now.  The maternal grandmother is a resident of the Country D.

23. As to the capacity of the parents – obviously, they are both capable parents.  The grandmothers get an honourable mention in the evidence, and both, obviously, have a good relationship with the children and are capable. 

24. As to the maturity, lifestyle, and background of the children – they are the ages I have identified and those sexes.  Through their father they have a US connection and that will be important going forward.  As to the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents – there is a small complaint that the father did not take up time when he could have on one occasion, but really there is nothing identified there.  No relevant family violence is raised nor any family violence orders. 

25. As to the extent to which the parents fulfilled or failed to fulfil their responsibilities as parents – taken opportunities to spend time with the children, taken opportunities to be involved in decision-making.  That is not really the relevant complaint.  I think the father complains the mother has taken a couple of unilateral steps.  When he returned from Country D she moved out of one property and into another, but there is nothing relevant under this criterion. 

26. An order that would be less likely to lead to further proceedings is not really a relevant consideration for interim matters.  There is a catchall provision that does not seem to apply. 

27. It is a happy imponderable as to what should be done in relation to these children, and it comes to the fact that courts have typically been cautious about young children.  No matter what the research says that will continue to be the case.  Every year we hear more about the way in which children’s brains develop.  At an interim level the Court needs to be confident that what it orders is better than what currently exists.  The parties have a view about that.  It is important to say that there is a real issue about whether a court makes an order on an interim basis. 

28. This is an absolutely delightful situation.  The children are well.  The parents are well.  These children are on a lovely trajectory, and all is good.  Each of the parents continues to press for orders that promote the relationship between the children and the other parent.

29. There is no entitlement to an interim parenting order.  It is an order made if something has to be done before you can hear the case.  I suspect the benefit of C going to a wedding anniversary or a family Christmas is probably more about adults rather than him.  He might not even remember what happens.  Absolutely no harm will come to him if he does not go on one of the proposed trips.  Just because one child travelled well with the blessing of both parents when the parties were together, does not mean another child, completely different child, will cope well.  There is a different order of difficulty in terms of managing two children on a plane rather than one.  So it seems to me in relation to that this issue that there is no need to make the order.  C will be fine without the proposed travel.  It sounds as though the parties will agree to overseas travel for C in the not too distant future.  Certainly, even with the Court’s delays there will be a final hearing in the medium term and in time for some events and proposed changes to living arrangements.  I do not have a clear justification for the changes that are proposed for me to change the arrangement that applies at the moment.  It might please the parties once they can think collaboratively about things, they can change the current arrangements by agreement. I note again that they both seek that some changes be made. 

1. There might be something that attracts one parent to the reasoning of the other, but it seems to me that we know that the current arrangements are pretty effective.  It might be that there is some separation anxiety in C because he has not been seeing enough of his father.  It might be that his attachment to his mother is a bit frail.  Who is to know?  It might be that he had a stomach ache that day.  So it seems to me that unless the parties otherwise agree, the arrangements should be until further order that:  B live with the father in week one from 3.00 pm Monday to 3.00 pm Monday, so from one week to the next except for the period between 3.00 pm Wednesday and 3.00 pm Friday, and that in week two that excised period be the time with the father, 3.00 pm Wednesday to 3.00 pm Friday.  And in relation to C, that he live with the father from 3.00 pm Tuesday to 3.00 pm Wednesday and from 9.00 am Saturday to 3.00 pm Monday.  That is in one week, and 3.00 pm Wednesday to 3.00 pm Friday in the second week.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 7 July 2014.

Associate:

Date:  20 August 2014