VENTURE & VENTURE (No.2)

[2014] FCCA 3073

FEDERAL CIRCUIT COURT OF AUSTRALIA

VENTURE & VENTURE (No.2) [2014] FCCA 3073

Catchwords:
FAMILY LAW – Children – Parenting Orders – Interim Orders – best interests of the children – orders for children to spend time with father.

Legislation:

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

Cases cited:
Venture & Venture [2014] FCCA 3069

Applicant: MR VENTURE

Respondent: MS VENTURE

File Number: SYC 433 of 2013

Judgment of: Judge Scarlett

Hearing date: 19 December 2014

Date of Last Submission: 19 December 2014

Delivered at: Sydney

Delivered on: 19 December 2014

REPRESENTATION

Solicitor for the Applicant: Ms La Cava

Solicitors for the Applicant: Doolan Wagner & Callaghan

Counsel for the Respondent: Ms Spain

Solicitors for the Respondent: Byrnes Lawyers

Independent Children's Lawyer: Ms Baltins

Solicitors for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

UNTIL FURTHER ORDER

1. The children X born (omitted) 2000 and Y born (omitted) 2004 are to spend time and communicate with the father in accordance with their wishes.

2. If X or Y expresses a wish to the mother to spend time or communicate with the father the mother must forthwith contact the father to make arrangements for X or Y to spend time or communicate with him and both the mother and the father do all acts and things necessary to facilitate such time or communication occurring.

3. The child Z born (omitted) 2007 is to spend time with the father as follows:

   (a)From 11:00 am on Boxing Day 26 December 2014 to 2 January 2015 at 11:00 am;

   (b)From 11:00 am on 14 January 2015 to 21 January 2015 at 5:00 pm;

   (c)Each alternate weekend during the school term from Friday at 5:30 pm to Sunday at 5:30 pm; and

   (d)For one half of each school holiday period at the end of Term 1, Term 2 and Term 3.

4. Changeover between the parties where the children go from the care of one parent to the care of the other parent is to take place at (omitted).

5. The father is restrained by injunction from posting any comments on Facebook or Twitter or any other form of social media making any reference to the Respondent mother whatsoever.

6. The Applicant is adjourned to Wednesday 11 March 2015 for mention only at 10:00 am.

7. The Respondent’s solicitor is granted leave to attend by telephone on the next occasion.

8. The parties are excused if represented.

IT IS NOTED that publication of this judgment under the pseudonym Venture & Venture (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 433 of 2013

MR VENTURE

Applicant

And

MS VENTURE

Respondent

REASONS FOR JUDGMENT

Application

1. This is a further application for interim parenting orders between the parties. In my earlier decision (Venture & Venture[1]) I appointed an Independent Children’s Lawyer to represent the interests of the parties’ three children and stated that the issue of the time that the children spend with the father was to be adjourned until such time as an Independent Children’s Lawyer had been appointed and was in a position to make submissions about matters concerning the care, welfare and development of the children.

   [1] [2014] FCCA 3069

2. The Independent Children’s Lawyer, Ms Baltins, filed a Notice of Address for Service on 31 October 2014.

Further Affidavits

1. The father has now filed the following affidavits:

   a)his own affidavit of 2 December 2014;

   b)the affidavit of Ms K, a friend, sworn 6 November 2014;

   c)the affidavit of his sister, Ms N, dated 17 November 2014; and

   d)the affidavit of his mother, Ms H, sworn 18 November 2014.

2. The father’s solicitor, Ms La Cava, forwarded a letter to the Court dated 21 November 2014, with copies to the mother’s solicitor and the Independent Children’s Lawyer, in which she advised the court of the outcome of the proceedings against the father at the Gosford Local Court the day before. I should note that Ms La Cava’s letter was proper in the circumstances, and she stated in her letter that she was informing the Court “in accordance with our obligation as an Officer of the Court”.

3. The outcome of the proceedings before the Local Court was that:

   a)A final Apprehended Domestic Violence Order was made against the father in force for a period of two years. The ADVO named the mother and the parties’ two daughters as protected persons.

   b)Of the six charge matters, the Police proceeded with only two, being the offences of:

   i)Contravene prohibition or restriction in an Apprehended Violence Order; and

   ii)Stalk/intimidate with the intention of causing fear.

   c)The father pleaded guilty to the two charges and, in each case, without a conviction being recorded, he was directed to enter into a good behaviour bond for 18 months under the provisions of s.10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

4. The mother has now filed an affidavit sworn 17 December 2014. Her affidavit dealt with the proceedings before the Local Court, a number of Facebook posts placed by the father in relation to the mother, the children, the criminal proceedings against him and the current proceedings before this Court. The mother annexed hard copies of the father’s Facebook posts to her affidavit, many of which were most unfortunate and ill-advised.  

Consent Orders

1. The parties entered into some Consent Orders about the father’s time with the children, although there were areas that were not agreed, including arrangements for changeover and the time that the parties’ son Z is to spend with his father.

Matters in Issue

1. The issues between the parties concern:

   a)The father’s time to be spent with his daughters, X and Y;

   b)The time the father is to spend with his son Z; and

   c)The venue for changeover.

The relevant law relating to parenting orders

1. I set out in the earlier decision the matters that the Court must consider, being the matters contained in section 60B, 60CA, 60CC, 61DA and 65DAA. I have again considered those matters, where they are relevant.

Parental Responsibility and section 61DA of the Family Law Act

1. I have previously ordered that until further order the mother should have sole parental responsibility for the children, who are currently living with her. I see no reason to vary that order.

Section 65DAA of the Family Law Act

1. As there is no order for equal shared parental responsibility, there is no need to consider the matters in s.65DAA of the Act about equal time with each parent or substantial and significant time.

Relevant matters in Section 60CC of the Family Law Act

1. The primary considerations remain, being the benefit to the children of having a meaningful relationship with each of their parents and the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. It is of significance that the father is now on a good behaviour bond for 18 months in respect of the two charges to which he has pleaded guilty and there is now a final Apprehended Domestic Violence Order in force for a period of two years naming the mother and the two girls as protected persons. The orders made under the Apprehended Domestic Violence Order are the standard orders and an additional order:

   The Defendant must not approach or contact the protected persons by any means whatsoever except through the defendant’s legal representative or in accordance with orders made under the Family Law Act.

3. The rift between the two girls and their father remains, but it is clear that the youngest child, Z, would benefit from spending some time with his father.

Orders that are in the children’s best interests

1. There are areas of difference between the father and the mother about the father’s time to be spent with his daughters, X and Y, and about the time the father is to spend with his son, Z. I have heard submissions from the solicitor for the father, Counsel for the mother and the Independent Children’s Lawyer.

2. Dealing first of all with the rift between the father and his two girls, it has been a feature of this case since it has been before me that there is a rift and that the girls have, in the past, expressed opposition to spending time with their father. The Independent Children’s Lawyer has told the Court that, from her interviews with the girls, their opposition remains.

3. The father certainly came up with a comparatively modest proposal that the children (i.e. the two girls) spend time with him on changeover days on 2 January and 21 January for a period of two hours. He offers, if necessary, that this could be supervised by the children’s grandparents. The children, however, have taken a very strong view. The alternative proposition is that if the girls wish to spend time or communicate with their father, the mother will contact him to make arrangements for the girls to spend time or communicate with him, and that the mother and father should do what is necessary to facilitate that time.

4. I have earlier this afternoon made some quite critical comments about messages the father has posted on Facebook, printouts of which have been annexed to the mother’s affidavit. It is hardly likely that those comments would do anything to increase the girls’ wish to spend time with their father; quite the reverse, in my view.

5. It has been put to me by Ms La Cava for the father that this was an expression of frustration by the father, and it may well be. However, it cannot have a beneficial effect. I am not prepared to make an order prescribing times at this stage that the girls should spend time with their father. It seems to me that there will need to be a period of time whereby the girls can see that things have calmed down. It may well be that, seeing that their younger brother can spend happy time with his father, this may help them to come around and express a desire to spend time with him. One can only hope.

6. At this stage I will order that the children X born (omitted) 2000 and Y born (omitted) 2004 spend time and communicate with the father in accordance with their wishes.

7. Further, if X and or Y express a wish to the mother to spend time or communicate with the father, the mother must forthwith contact the father to make arrangements for X and or Y to spend time or communicate with him, and both the mother and the father do all acts and things necessary to facilitate such time or communication occurring.

8. I propose to make an order whereby the father is restrained by injunction from posting any comments on Facebook or Twitter or any other form of social media making any reference to the Respondent mother whatsoever.

9. Turning now to the child Z, it has been clear throughout this case that this little boy does want to spend some time with his father. Indeed, there is agreement in principle from the mother, although not entirely in detail about the arrangements.

10. There is a difference between the parties of some two days, whether block time starts on Boxing Day, as the father wishes, or on 28 December, as the mother wishes. The mother’s reasons are that her sister is spending time with her, I think on 26 and 27 December, and it would be good for Z to spend time with his cousins. No doubt, it would. But, in my view, around the Christmas season, the priority should be given to this little boy’s relationship with his father. My view is that this time should commence on Boxing Day. It does not appear to me that the length of time that that would involve would be unduly onerous upon this child. Hopefully, it will be pleasant time for him.

11. The mother consents to the father spending time with Z, but from 11:00 am on 14 January to 5:00 pm on 21 January. There is also consent to the child spending half of each school holiday period with his father.

12. The father seeks each alternate weekend with Z; the mother seeks one weekend per month. One of the reasons that is given is travelling time and, as the Independent Children’s Lawyer submits, the practical reality of that has an effect. Nevertheless, I propose to order that the child spend each alternate weekend with the father from Friday at 5:30 pm until Sunday at 5:30 pm. It will involve some travelling for him. That is something that both parents will need to accommodate. This boy, in my view, needs to spend regular, structured time with his father to maintain the relationship.   

13. As for changeover, there is an issue between the parties as to whether it should be at (omitted) coming and going, or whether it should alternate between (omitted) and (omitted). My view is that the one spot, namely (omitted), should be the approved changeover location and I propose to order accordingly.

14. So that it is known exactly when Z will be spending time with his father, the arrangements are:

    a)Christmas holiday time will start on Boxing day at 11:00 am. It will go through to the 2 January, and it will go from 11:00 am on 14 January to 21 January at 5:00 pm.

    b)The child will spend alternate weekends with his father.

    c)The child will spend half of the school holiday periods in the future with his father.

    d)The changeover is at (omitted).

15. Orders will be made accordingly.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  21 January 2015