WALSH & WALSH

[2016] FamCA 21

FAMILY COURT OF AUSTRALIA

WALSH & WALSH [2016] FamCA 21

FAMILY LAW – CHILDREN – Interim Parenting – Travel – Substantial agreement between the parents –Best interests of the child – With whom the child lives – With whom the child spends time.

Family Law Act 1975 (Cth) 60CA, 60CC, 61C.

Deiter & Deiter [2011] FamCAFC 82.
George & George [2013] FamCAFC 182.
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346; (2007) 26 Fam LR 422.
SS & AH [2010] FamCAFC 13.

APPLICANT: Mr Walsh

RESPONDENT: Ms Walsh

INDEPENDENT CHILDREN’S LAWYER: Ms Nielson

FILE NUMBER: PAC 483 of 2015

DATE DELIVERED: 22 January 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 14 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Katie Smith Solicitor

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Litigant in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta Family Law

Orders

Pending further order

1. The children B born … 2004, C born … 2006 and D born … 2006 (“the children”) are to live with their mother except when they live with their father.

2. The child B is to live with the father as agreed between the parties.

3. The children C and D are to live with the father each alternate weekend commencing at 4.00 pm Friday afternoon or on a school day when school finishes until 9.00 am on Monday morning commencing Friday 18 December 2015.  During the school holiday period the children are to be collected by the father from the mother’s residence at the commencement of their time and returned by the father to the mother’s residence at the conclusion of that time.  During school term collection for changeover is to take place at the children’s school and is to commence as soon as school finishes and return of the children is to be prior to the commencement of school on the following Monday by delivering the children to the school.

4. The children are permitted to travel internationally with the mother between 26 December 2015 and 7 January 2016.

5. The father, no later than 24 hours from the date of these orders is to deliver the children’s passports to the office of the wife’s solicitors.

6. In the event the father fails or refuses to deliver the passports to the mother in accordance with Order 5, the mother may apply to the Australian Passport Office to issue an Australian passport to each of the children and the father’s consent is dispensed with.

7. The matter is to be relisted before me following the release of the memorandum in the Child Response Program.

8. In the event that the children C and D are otherwise to spend time with the father during their international travel permitted under these Orders, that time is suspended.

9. The children are to spend time with their father on Christmas Day, with the father to collect the children from the mother’s residence at 10.00 am and to return the children to the mother’s residence at 6.00 pm.

10. The mother’s costs are reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Walsh & Walsh 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 PARRAMATTA

FILE NUMBER: PAC 483  of 2015

Mr Walsh

Applicant

And

Ms Walsh

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter concerns the interim parenting arrangements and international travel for three children: B, who is 11, and C and D, who are nine years old.

2. The parties were married in 2002 and separated in mid-2013. Since separation, the parenting arrangements for the three children have changed several times, but there have been no orders in place with respect to those arrangements.

3. The mother seeks orders as set out in her Application in a Case filed 19 October 2015 that the three children be permitted to travel overseas from 26 December 2015 to 7 January 2016.  In the course of hearing, the mother also sought interim parenting orders very similar to those contained in her Response to Initiating Application, that is, orders that the children live with her, that C and D spend time with the father each alternate weekend, and B spend time with the father as agreed between the parents.

4. In his Response to an Application in a Case filed 10 December 2015 and at the outset of the hearing the father sought that the children not be permitted to travel overseas. In the course of hearing, the father’s position changed so that he had “no further objections” to the mother’s application if there were interim parenting orders in place, which ameliorated his concerns that the children would not return to Australia.

5. While the father is seeking different orders in his Initiating Application filed 11 August 2015, at the hearing the parties were in agreement as to the interim parenting orders for B and C, but remained in dispute as to the parenting arrangements for D.

6. The Independent Children’s Lawyer (ICL) was inclined on the available material to support the mother’s application for international travel, but was unable to express a firm opinion about the parenting arrangements for D.

7. On 14 December 2015, I made interim parenting orders including that the three children live with the mother except when living with the father, that C and D live with the father on alternate weekends and B live with the father as agreed between the parties. I also made orders permitting the children to travel internationally, and orders to facilitate that travel and indicated that I would deliver my Reasons at a later date. These are those Reasons.

background

1. The parents, who are both 39, began living together in 2001 and married in 2002.

2. The eldest child, B, was born in 2004, and the two younger children, C and D, were born in 2006.

3. The mother says that for most of the relationship both she and the father worked, but she worked locally and was the primary carer of the children. The father does not provide details of the care of the children during the relationship.

4. The parents separated in around April 2013, and the father left the family home in June 2013.

5. The mother says that after separation until around the end of 2014, the children lived with the mother and spent time with the father around every second weekend and Tuesday and Wednesday evenings and half of school holidays.

6. In September 2014, the parents attended mediation. At around this time, the mother says that the arrangements were changed so that B and D continued to live with her and spend alternate weekends with the father, while C was spending six nights per fortnight with the father. The father says that the parents agreed to “give the children the flexibility to have a choice in their care arrangements. C chose 50/50 care between [the mother and father], B and D chose to stay with [the father] alternative weekends…”. The father says he also agreed to the mother taking the children on an international cruise, but later says that this agreement was “null and void” as the parents were no longer in agreement about the greater parenting arrangements.

7. In February 2015, an Application for Consent Orders was filed in this Court by the mother. The orders provided for the children to live with the mother. They further provided for all three children to spend time with the father on alternate weekends from Friday at 12pm to Monday at 12pm and half of the school holidays, and for C to additionally spend time with the father each Monday from 12pm to Wednesday at 12pm.

8. The mother says that between February 2015 and April 2015, the children lived with the mother and spent time with the father on alternate weekends. The father is unclear about what the arrangements were at this time.

9. On 26 March 2015, a Registrar declined to make the orders sought as a number of the orders were not drafted in a manner capable of being made into Orders of the Court and further information was also required.

10. Between April 2015 and July 2015, the mother says that B spent time with the father on three occasions and that C spent time with the father on three occasions with two nights overnight. She further says that D spend time overnight with the father on three occasions. The father is unclear about what the parenting arrangements were during this period, although it is apparent that there was significant disagreement between the parents.

11. On 16 June 2015, the Registrar noted that the requisitions had not been complied with and the application for consent orders was dismissed.

12. The mother says that since July 2015, D has lived with both parents on a week-about basis, while C has spent some weekend time with the father and B has had little contact with the father.

13. On 11 August 2015, the father initiated parenting proceedings, seeking interim and final orders that the parents equally share parental responsibility, that the children live with the father and spend time with the mother on alternate weekends and other orders.

14. On 25 August 2015, the matter came before Registrar Tran. It was noted that B was not seeing the father, C was spending time with the father every second weekend and D was effectively living with both parents weekabout. Orders were made appointing an Independent Children’s Lawyer and for the parents to attend an intake event for Child Responsive Program.

15. On 19 October 2015, the mother filed an Application in a Case for orders permitting the children to travel overseas between 26 December 2015 and 7 January 2016.

16. In the course of the hearing, it was agreed by both parties that recently (between two to four weeks according to the father, or four to six weeks according to the mother), D has lived primarily with his mother after the father expressed to the children that his partner was experiencing health difficulties and he could not satisfy the week-about arrangement. The father says that he is now in a position to resume D’s week-about arrangement. 

17. On 10 December 2015, the father filed his Response to an Application in a Case seeking that the mother’s application be dismissed.

18. The mother’s application for international travel was listed for hearing on 14 December 2015. On this date, as indicated, I made orders relating to the children’s travel and interim parenting orders.

The Hearing

1. At the outset of the hearing on 14 December 2015, the father opposed the mother’s travel application. After the father made his submissions regarding the mother’s travel application, in the course of discussions about his concerns and his position that the children remain in Australia until there were orders in place, the father expressed that “if the interim orders are enforceable, that [the children] would need to return to the country afterwards, then I have no more concerns”. It was clarified that if there were interim parenting orders, the father would consent to the mother’s application. In these circumstances I indicated that I would consider making interim parenting orders.

2. The parties both agreed to orders that the children live with the mother, except when living with the father; that B live with the father as agreed between the mother and the father and that C live with the father on alternate weekends. The issue in dispute is the parenting arrangements for the child D, with the father seeking a resumption of a week-about arrangements and the mother seeking that D live with his father on alternate weekends with the child C.

3. It is noted that the parents are attending the intake assessment for the Child Responsive Program Memorandum in February 2016.

The contested facts

1. In addition to the uncontested facts, in accordance with the decision of SS & AH[1], the Court may have some regard to the matters in dispute.  In that case, their Honours said at [100]:

   Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

   [1] [2010] FamCAFC 13

2. The mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it (see George and George[2], a decision of the Full Court citing Deiter & Deiter[3].

   [2] [2013] FamCAFC 182

   [3] [2011] FamCAFC 82)

3. In this matter, the father submitted that the a week-about arrangement was in the child’s best interests as D was in “better care” in his household than with the mother but did not detail how his household provided better care or assert there was a risk of harm in the mother’s care. The father makes allegations in his affidavit of physical violence perpetrated by the mother against the children and “unstable mental health” but provides no independent evidence in support of his allegations.

4. In the circumstances in which this application came about and in a limited application of this kind it is not possible to make findings in relation to this issue in dispute. It is noted, however, that somewhat inconsistently with his concerns, the father was in agreement that the children B and C live primarily with the mother, and that D live with the mother every second week.

The law

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[4].

   [4] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

2. In applying the law to the facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting.

3. Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

4. Goode (supra) sets a framework for the conduct of interim proceedings.  After identifying the competing proposals, identifying the issues in dispute and identifying the agreed or uncontested relevant facts, the first issue to ordinarily be considered is that of parental responsibility.

5. In this matter, in the limited application neither party sought orders with respect to parental responsibility. Accordingly, under s 61C(1) each of the parents of a child has parental responsibility for the children. It is noted that the parents and children will attend interviews with the family consultant in February 2016, after which the parties and the Court will have the benefit of a Child Responsive Program Memorandum.

6. In determining what is in a child’s best interests, the Court is to consider the matters set out in subsections (2) and (3). 

7. The primary considerations, which are contained in subsection (2), are:

   a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

8. Section 60CC(2A) provides that in applying these considerations, the Court is to give greater weight to the considerations set out in subsection (2)(b).

9. Both parents support a continuing relationship between the children and the other parent. Both parents’ proposals will provide the children with the benefit of having a meaningful relationship with each parent.

10. While the father did not refer to any allegations of family violence in his submissions in relation to D’s parenting arrangements, in his affidavit the father makes serious allegations of physical abuse and the mother’s unstable mental health. In the circumstances in which this application came about, in a limited application of this kind it is not possible to make findings in relation to this issue in dispute.

11. While the father makes serious allegations of abuse in his affidavit, he did not contend that there is a need to protect the children from harm in support of his proposal for shared care of D, and indeed seeks arrangements where B and C live substantially with their mother, and D lives with his mother half of the time.

12. Section 60CC(3) sets out additional considerations, a number of which are not able to be applied in this case, and I will refer to those which are relevant in this case.

Views expressed by the children and any factors underlying their views

1. There is no evidence before the Court of the children’s views or factors underlying those views, other than the assertion of the father that the shared care arrangements are in accordance with D’s wishes. The children’s wishes will no doubt be clearer after Child Responsive Program Memorandum is prepared in early 2016. In any event, as submitted by the ICL, D is only nine years old and limited weight can be placed on his views.

The nature of the relationship of the children with each of their parents, and other significant persons

1. Again, without the benefit of a Memorandum or Report, the nature of the relationships between the children and the parents is unclear. It can be inferred from the previous parenting arrangements that D has valuable relationships with both parents. Those relationships would be supported by either proposal.

2. Under the mother’s proposal, D will live primarily in the same household as his two sisters, and his arrangements will be in line with those of his twin sister, C supporting his relationship with his siblings.

Extent to which each parent has taken, or failed to take, the opportunity to participate in decision making, to spend time with or to communicate with the child

1. Both parents appear to have taken the opportunity to spend time with, communicate with and make decisions for the children. There is some suggestion that these efforts have not always been consistent.

Extent to which each parent has fulfilled or failed to fulfil their obligations to maintain the child

1. This is not matter of significance in this interim application.

Likely effect of any change in the child’s circumstances, including the likely effect of separation from either parent, or other child, or other person with whom the child has lived

1. As indicated, although unclear, the parenting arrangements for these children including D have been changeable and inconsistent since separation.  The parents appear to have given significant weight to the views of these young children in determining which parent they live with. More recently, it appears that the week-about arrangement for D, in place from around mid-2015, was changed in around November 2015 by the father and D has since lived with the mother and irregularly spent time with the father. Minimising any further changes in D’s circumstances, regularising the arrangements for D to continue to live with the mother, and to spend each alternate weekend with the father will likely provide the child with a stable base and a consistent parenting arrangement.

Practical difficulty and expense of a child spending time with and communicating with a parent

1. It was not submitted there were any significant difficulties with the children spending time with or communicating with the other parent.

Capacity of each parent and other persons to provide for the child’s needs, including emotional and intellectual needs

1. As indicated, the father submitted that the child D was provided with better care in the father’s household, but did not specify how he was more capable of providing for the child’s needs than the mother. It is noted that the father was in agreement that the children B and C live primarily with the mother, and that D live with the mother every second week, which is at odds with his allegations concerning her parental capacity.

Maturity, sex, lifestyle, background, including lifestyle, culture and traditions, of the child and of either parent

1. This is not matter of significance in this interim application.

Attitude to the child and responsibilities of parenthood demonstrated by each parent

1. The changeable parenting arrangements for the children since separation, which appear to be significantly governed by the wishes of these young children is a point of concern in relation to the responsibilities of parenthood.

Family violence

1. This factor is considered above.

Whether preferable to make an order least likely to lead to the institution of further proceedings in relation to the child

1. This is not matter of significance in this interim application.

Conclusion

1. As indicated, the father indicated that he agreed to the children travelling if parenting orders ensuring their return were in place and the parents were largely in agreement with respect to those interim parenting orders. The issue in dispute for determination are the parenting arrangements for the child D. In coming to a decision about what orders are in the best interests in the context of this limited interim application, I must balance the various matters to which I have referred.  In my view, having regard to both the primary considerations and the additional considerations set out in s  60CC and in way the matter has come before me for consideration, it is in the best interests of the child live with the mother and spend time with the father each alternate weekend with his sister C.

2. Accordingly, I make the orders as set out at the forefront of these Reasons for Judgment.

I certify that the preceding fifty eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 22 January 2016

Legal Associate: 

Date:  22 January 2016