Warne and Blond and Anor

FAMILY COURT OF AUSTRALIA

WARNE & BLOND AND ANOR

[2009] FamCA 1252

FAMILY LAW – CHILDREN – BEST INTERESTS – Significant geographical distance between homes of father and mother – Agreed equal shared parental responsibility – Agreed that children twin girls live with mother and spend holiday time with father and also with paternal step great grandmother – Twins half sibling may accompany time with paternal step great grandmother – Telephone communication

Family Law Act 1975 (Cth) s 60CC

Rice v Asplund (1979) FLC 90-725
Miller & Harrington (2008) FLC 93-383

APPLICANT:

Ms Warne

FIRST RESPONDENT:

Ms Blond

SECOND RESPONDENT/INTERVENER:

Mr Tyner

FILE NUMBER:

CSC

634

2008

DATE DELIVERED:

14 December 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O'Reilly J

HEARING DATE:

28, 29 & 30 September 2009

REPRESENTATION

THE APPLICANT:

Appeared on her on behalf

THE FIRST RESPONDENT:

Appeared on her own behalf

THE SECOND RESPONDENT/INTERVENER:

Appeared on his own behalf

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Carmody

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Carter Farquar Mediation & Family Law

Orders

IT IS ORDERED

Parental responsibility

The mother and the father have equal shared parental responsibility for K and C, twins, born … June 2001.
In the exercise of their equal shared parental responsibility concerning K and C in relation to decisions as to any major long-term issues the parties are to consult each other and make genuine effort to come to joint decisions.
If after consultation joint decisions are not able to be made as to an issue or issues the parties jointly are to consult a family law dispute resolution practitioner to assist them to resolve such issue or issues.
The parties each be responsible for K’s and C’s day to day care while the children are with each of them.
The mother have sole parental responsibility for S born … April 2000.

Children’s living arrangements

S, K and C live with the mother.
K and C spend time with the father at all times as may be agreed in writing between the mother and the father but failing agreement:
(a)for the whole of the June/July Queensland gazetted school holiday periods in each year from the first Saturday of the gazetted school holiday period until the last Saturday of the gazetted school holiday period (regardless of the incidence of any public holidays and pupil free days); and
(b)for the Christmas Queensland gazetted school holiday periods:
(i)for the first four weeks in the years in which the Christmas holidays commence in an even year, to commence on the first Saturday and end on the fourth Saturday of that school holiday period;
(ii)for the last four weeks in the years in which the Christmas holidays commence in an odd year, provided however that such period be shortened as may be required to ensure that K and C spend both Christmas Day and Boxing Day in that year with the mother so as to commence on 28 December in such year and end on the last Saturday of the gazetted school holiday period (regardless of the incidence of any public holidays and pupil free days).
To facilitate K and C spending such time with the father:
(a)the father is to arrange, book and pay for flights for K and C from Brisbane to his place of residence and give the mother 21 days notice by email of the flight arrangements and proof of costs;
(b)the mother is to ensure that K and C board the notified flights and reimburse the father half of the notified flight costs within 14 days of the emailed notice by the father;
(c)the father is to ensure that all flights booked for the children are ones scheduled for departure no later than 12 noon on any travel day.
In relation to all other time which K and C may spend with the father at his proposal and with the mother’s agreement, the father is to be solely responsible for travel costs, and ensure that all flights booked for the children are ones scheduled for departure no later than 12 noon on any travel day.
S (if he wishes to attend) K and C spend time with the paternal step great grandmother at all times as may be agreed in writing between the mother and the paternal step great grandmother but failing agreement:
(a)for ten days of the September/October Queensland gazetted school holiday period to commence on the first Saturday of that period and, inclusive of that Saturday, to end on the tenth day following it.
K and C spend such further time with the paternal step great grandmother as may be agreed between the father and the paternal step great grandmother when K and C are spending time with the father, and/or during any flight changeovers, including overnight, if the children should be travelling between Cairns and the Northern Territory to spend time with the father or during such return trip.
To facilitate S, K and C spending time with the paternal step great grandmother:
(a)the mother is to arrange, book and pay for flights for S, K and C from Brisbane to Cairns and give the paternal step great grandmother 21 days notice by email of the flight arrangements and proof of costs;
(b)the mother is to ensure that S, K and C board the notified flights and the paternal step great grandmother is to reimburse the mother half of the notified flight costs within 14 days of the emailed notice by the mother;
(c)the mother is to ensure that all flights booked for the children are ones scheduled for departure no later than 12 noon on any travel day.

Telephone communication

K and C have telephone communication with the father on such days and times as may be agreed by the mother and the father in writing but failing agreement:
(a)between 7.00pm and 7.30pm (Brisbane time) each Tuesday and Sunday, the calls to be initiated by the father to a landline or mobile telephone number notified by the mother to the father for that purpose, with the mother to ensure that K and C are available to receive the calls;
(b)on special days (for example, Father’s Day, Christmas Day when the children are not with the father, the father’s birthday and the birthdays of K and C, Ms N, E, O and J), at reasonable times, to be initiated by the father to the landline or mobile telephone number notified by the mother to the father, with the mother to permit K and C to take the calls if they are available;
(c)liberally at such other times as K and C reasonably may request of the mother, to be initiated by the children.
S, K and C have telephone communication with the paternal step great grandmother (to include also Mrs Tyner, the paternal grandmother, if she is available) on such days and times as may be agreed by the mother and the paternal step great grandmother in writing but failing agreement:
(a)between 7.00pm and 7.30pm (Brisbane time) on each Monday and between 7.45am and 8.15am (Brisbane time) on each Thursday, the calls to be initiated by the paternal step great grandmother to a landline or mobile telephone number notified by the mother to the paternal step great grandmother for that purpose, with the mother to ensure that S, K and C are available to receive the calls.
(b)on special days (for example, Mother’s Day, Christmas Day when the children are with the mother, the birthdays of the paternal step great grandmother, the paternal grandmother and K and C), at reasonable times, to be initiated by the paternal step great grandmother to the landline or mobile telephone number notified by the mother to the paternal step great grandmother, with the mother to permit K and C to take the calls if they are available;
(c)liberally at such other times as K and C reasonably may request of the mother, to be initiated by the children.
When K and C are with the father, they have telephone communication with the mother:
(a)between 7.00pm and 7.30pm (Brisbane time) each Tuesday and Sunday, the calls to be initiated by the mother to a landline or mobile telephone number notified by the father to the mother for that purpose, with the father to ensure that K and C are available to receive the calls;
(b)on special days (for example, Mother’s Day, Christmas Day when the children are with the father, the mother’s birthday and the birthdays of K and C), at reasonable times, to be initiated by the mother to the landline or mobile telephone number notified by the father to the mother, with the father to permit K and C to take the calls if they are available;
(c)liberally at such other times as K and C reasonably may request of the father, to be initiated by the children.
While S, K and C are with the paternal step great grandmother, they have telephone communication with the mother:
(a)between 7.00pm and 7.30pm (Brisbane time) each Monday and Thursday, the calls to be initiated by the mother to a landline or mobile telephone number notified by the paternal step great grandmother to mother for that purpose, with the paternal step great grandmother to ensure that K and C are available to receive the calls;
(b)on special days (for example, Mother’s Day, the mother’s birthday and the birthdays of K and C), at reasonable times, to be initiated by the mother to the landline or mobile telephone number notified by the paternal step great grandmother to the mother, with the paternal step great grandmother to permit K and C to take the calls if they are available;
(c)liberally at such other times as K and C reasonably may request of the paternal step great grandmother, to be initiated by the children.

Parties’ ability to make other arrangements in writing

Despite these orders, the parties may make other arrangements in relation to the children spending time with each of them, provided that such other arrangements are agreed in writing.

Parties’ communication

All written communications between the parties concerning the children, including in relation to the parties’ equal shared parental responsibility, be by email or text message and not contain any subject matter other than as may relate directly to the children and the carrying out of these orders.
To facilitate such written communication the parties as soon as practicable provide each other with an email address and/or SMS text message service number and give written communication of any change of such within 24 hours of any change.

Information

The parties must notify each other as soon as practicable of any serious accident or injury concerning the children.
The mother and father must notify each other of the names and addresses of any treating medical or health practitioner including any counsellor or psychologist the children attend and any hospital the children attend and authorise such to provide to the other at his/her request and expense any information or reports concerning the children provided that this order is sufficient authorisation to do so.
The mother and father must authorise the children’s school to provide to the other at his/her request and expense copies of reports concerning the children and circular or other written information concerning school activities usually provided to parents of children at the school provided that this order is sufficient authorisation to do so.

Attendance at the children’s school

The parties may attend any school or extra curricular activities usually attended by parents such as parent teacher interviews, concerts, sports days and the like.

Non denigration

The parties must not denigrate each other or permit other persons to do so in the presence or hearing of the children and use their best endeavours to ensure that other persons do not do so.

Parenting orders program

The mother and the father as soon as possible must enrol in and complete a parenting orders program through either Relationships Australia or similar organisation to assist them to learn to communicate with each other effectively in relation to parenting issues concerning the children.

Adult issues

The parties must not discuss adult issues with or in the presence or hearing of the children and use their best endeavours to ensure that other persons do not do so.

All other orders discharged

All other orders concerning the children are discharged.

All other applications dismissed

All other applications concerning the children are dismissed.

Independent children’s lawyer discharged

Subject to the next order, the independent children’s lawyer is discharged.

Liberty to apply

The parties have liberty to apply by arrangement directly with the Associate if confusion should arise as to the intended operation of these orders or if any of them is unclear so as to require clarification.

IT IS NOTED that publication of this judgment under the pseudonym Warne & Blond and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: CSC 634 of 2008

MS WARNE

Applicant

And

MS BLOND

Respondent

And

MR TYNER

Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings occupied three days in September 2009.
They concern three children S born in April 2000, 9½ years, and K and C, twins, born in June 2001, 8½ years.
Mr Tyner (the father) and Ms Blond (the mother) are the natural parents of K and C. Although the father and the mother commenced to live together in about late 1996, by process of DNA testing it has been established that S is not the biological child of the father. S’s paternity otherwise is uncertain.
Ms Warne, who is the paternal step great grandmother (the paternal step great grandmother) commenced the proceedings on 13 October 2008. Initially, the only named respondent was the mother, who filed a response 17 November 2008, and subsequently an amended response 19 March 2009.
By a procedural order made early in the proceedings in the Federal Magistrates Court, the paternal step great grandmother was required to serve the father with a copy of her application.
On 11 December 2008, the father filed an application for final orders naming the mother as the first respondent and the paternal step great grandmother as the second respondent and sought also by way of procedural order that he be given leave to intervene in the proceedings commenced by the paternal step great grandmother.
On 17 February 2009, by an order also made in the Federal Magistrates Court, the father was granted leave to intervene in the proceedings commenced by the paternal step great grandmother.
Variously, in some of the material, the father thus has been described as applicant, first respondent, second respondent and intervener and, variously, the mother has been described as first respondent and second respondent, and the paternal step great grandmother as applicant and second respondent.
On the first day of the hearing, however, I made clear that although it appeared that there had never been an order that the principal applications by the paternal step great grandmother and by the father, respectively, be consolidated, procedurally the matter has been treated as if there had been a procedural order for consolidation and that further I would treat the proceedings as consolidated and that to save confusion it would be convenient to refer to the parties by the designations of their relationship to the children rather than by any procedurally designated title.

The geographical location of the parties

The father lives in the eastern area of the Northern Territory. The mother lives in Brisbane, in south-eastern Queensland. The paternal step great grandmother lives in Cairns in Northern Queensland.

Consent as to parental responsibility

At the hearing the parties, with the concurrence of the independent children’s lawyer, who appeared by Ms Carmody of Counsel, agreed that the father and the mother should have equal shared parental responsibility for K and C. As I then observed, such in my view is in K’s and C’s best interests and I indicated that I would make such an order. It was further agreed that the mother should have sole parental responsibility for S. Such in my view is in S’s best interests and I will make that order.

The parties’ final proposals concerning the children’s living arrangements and other matters as at the conclusion of the evidence on 30 September 2009

It is convenient, without referring to the various proposals in the parties’ various applications and responses, to set out their final proposals concerning the children’s living and other arrangements as at the conclusion of the evidence on 30 September 2009.
The father proposed, consistently with his application for final orders filed 11 December 2008, that K and C live with him and that they spend eight weeks of the school holidays with the mother, being the four weeks of the June/July school holidays and four weeks of the Christmas school holidays, with the father paying for both sets of return flights. See also the father’s summary of argument filed 25 September 2009. The father made clear that the June/July school holidays in the Northern Territory occupy four weeks.
The mother proposed that K and C live with her and S in Brisbane, that K and C spend the two weeks of the Queensland June/July school holidays and three weeks of the Christmas school holidays with the father, that K and C spend one week of the Christmas school holidays with the paternal step great grandmother, but that be “in conjunction with” the three weeks which K and C spend with the father and further that K and C spend one week (described as eight days) of the September school holidays with the paternal step great grandmother, that, inferentially, being in Cairns, with the father to pay for K’s and C’s airfares for the June/July and Christmas holidays and the paternal step great grandmother and the mother to share equally the airfares for the September/October school holidays. Other orders sought related to telephone communication between K and C and each of the father and the paternal step great grandmother. See the mother’s hand written annexure to her affidavit filed 28 September 2009. The mother’s final proposal was consistent with both her response filed 17 November 2008 and her amended response filed 19 March 2009, at least to the extent of proposing that the children live with her. The mother’s amended response filed 19 March 2009 sought, in effect, that there be no formal orders concerning S in relation to either the father or the paternal step great grandmother.
The paternal step great grandmother proposed that K and C spend time with her in Cairns for the two weeks of the September/October school holidays in each year, and one week of the December school holidays in each year, that she and the mother pay half each of the airfares, and there be telephone communication largely in accordance with interim orders put in place by order made on 25 June 2009 in the Federal Magistrates Court, with additional telephone communication on the children’s birthdays, her birthday and the birthday of Mrs Tyner, who is her daughter and the paternal grandmother. See the paternal step great grandmother’s case information document filed 11 September 2009, her summary of argument filed 25 September 2009 and the transcript 28 September 2009 as to the paternal step great grandmother’s formulation of her final proposal.

Change in the father’s case by way of his written submissions

On 30 September 2009, Ms Carmody of Counsel, for the independent children’s lawyer, briefly outlined the independent children’s lawyer’s position. However, because all of the parties were litigants in person I gave them the opportunity to consider the evidence and make written submissions after receiving written submissions from the independent children’s lawyer.
The orders made thus were that the independent children’s lawyer file and serve written submissions by 1 October 2009 by email; the parties file and serve written submissions by 12 October 2009 by email; and the parties file and serve written submissions in response by 19 October 2009.

The father, in his written submissions, ultimately adopted the independent children’s lawyer’s proposal that K and C live with the mother, the relevant part of his written submission providing:
….. Leaving all this in the past now I will agree to the proposed court order by the Independent Children’s Lawyer leaving [K] and [C] with their Mother.
The father set out his reasons for agreeing to that order.
However, the father said in his written submissions that as from December 2009 it may be that he will no longer reside in the Northern Territory, where at the time of the trial he resided and was employed, but that he may be relocated to Cairns such that his employment in the Northern Territory be on the “fly in/fly out” basis and that he is “awaiting the decision” of his employer.
The father said also that he wanted to have terms “added to the court order”, meaning, in context, the orders proposed by the independent children’s lawyer, “to make sure the children’s child support is being spent on their needs and no one else as that is what it is for.”
Against this background, the father set out several ancillary orders/proposals which he sought including that:

A child support agreement be signed and lodged with the Child Support Agency specifying that the following be accepted as non agency payments:
Ø$500 per child per year to be spent on clothing and shoes to include one good outfit and everyday clothes and to be split $250 for winter and $250 for summer;
ØSchool fees, books and uniform including school shoes, bag, lunchbox, hat and socks;
ØThe cost of two after school activities one being swimming classes in summer and ballet in each year;
ØThe mother’s half of the airfares which, he noted, should greatly reduce if he should return to Cairns “so I don’t have any issues with trying to get the money back”.
The child support payment in the mother’s favour “will never be less than 70% of the full payment”, with prior advice by him to the mother by email as to reductions “so she can ensure she will have enough money for her bills and so forth” adding that he would be “also happy to include the payment of rent or electricity bills as part of a non agency payment in emergency cases if need be so the children will always have a roof over their head.”
K and C remain at the G State Primary School until the end of year seven.
K repeat the third grade in 2010, on the basis of school reports in evidence.
There be a change or changes to the four weeks in the Christmas school holiday period proposed by the independent children’s lawyer that K and C spend with the father on the following basis:
1. If I do return to Cairns and go FI/FO that I will reduce the Christmas holidays to 3 weeks instead of 4 as I will be able to make arrangements with [the mother] to fly the girls up on Long Weekends, I will endeavour to make up the time throughout the year as Ms [N’s] family is in [northern New South Wales] so we do go to Brisbane when we can.
2. [The mother] can have [K] and [C] every odd year for Christmas as this year I face the uncertainty as to where we will be.
The mother, K and C remain in Brisbane.
K and C “are to no longer wear nappies”, and the mother “will get them up at least once in the night to ensure that they don’t wet the bed and if the bed wetting continues she will get a referral to the continence clinic and seek help through them (alarm mats that wake the children when they start to wet)”.
Various prospective matters as to costs of future proceedings, namely that the mother be responsible for the costs of future proceedings in various prospective scenarios postulated.

In order to give context to the father’s new proposals, it is necessary that I refer to the independent children’s lawyer’s proposed orders as sent to the father, the mother and the paternal step great grandmother. These included that K and C live with the mother and spend time with the father for the two weeks of the June/July Queensland gazetted school holidays and 4 weeks of the Christmas Queensland gazetted school holidays, alternating between the first four in the odd years and the second four in the even years. Christmas Day however usually occurs in the third week, although this year it is in the second week. I will deal with this aspect of the matter below.

Summary dealing with some of the matters in the father’s written submissions

Before proceeding further, I will deal summarily with some of the matters in the father’s written submissions.
There are no proceedings on foot for a departure order to be made in respect of assessed child support. It thus would be inappropriate to make a departure order, in particular, having regard to the requirements of procedural fairness to the mother. In this regard the evidence includes reference to assessed child support and the history of the father’s payment of child support for K and C, including a transaction statement for the period 1 July 2008 to 30 June 2009, ex 2, which shows the father on some occasions in credit and on other occasions in arrears; and also an information document headed Payee Payment History being downloaded information by the mother from the Child Support Agency website, ex 3. If the father wishes to make voluntary payments to the mother, in the manner foreshadowed in his written submissions, and then seek to have those taken into account by the Child Support Agency, he must make appropriate application to the Child Support Agency.
If the father wishes to enter into a child support agreement with the mother, for signing and lodgement with the Child Support Agency, he must first propose such to the mother and seek her agreement to it, before signing and lodgement.
It follows that the relief the father seeks in relation to child support cannot be ordered in these proceedings.
The mother has not indicated any present intention to relocate the children away from the Brisbane area. As there is to be an order for equal shared parental responsibility for K and C, the mother will be obliged to consult with the father, and seek his agreement in relation to any such future proposal and the parties will be obliged to use their best endeavours to come to a joint decision: see s65DAC of the Family Law Act 1975 (Cth) (the Act) and the definition of “major long-term issues” in s4 of the Act. If after consultation there is no agreement the mother would be required to make application to the Court for relocation of the children. It is thus not appropriate to make the orders sought by the father.
The mother has not indicated any present intention to move the children from the G State Primary School. Similarly, as there will be an order for equal shared parental responsibility for K and C, if the mother proposes such, she will be obliged to consult with the father, and seek his agreement, and the parties will be obliged to use their best endeavours to come to a joint decision: see the same provisions of the Act as mentioned.
It is not appropriate that an order be made that K “repeat the third grade”. K and C’s school records are in evidence. If the father considers that K should “repeat the third grade”, then he should consult with the mother about that, in conjunction with the principal of the children’s school.
The father’s proposed orders that K and C “no longer wear nappies” and that the mother take the other steps proposed by the father are not appropriate. On the mother’s evidence, which I accept, K and C do not wear “nappies”, however, on occasions she has used “pull-ups” for the children’s comfort. The mother further said in her evidence, which I accept, that if after the conclusion of these proceedings the children should continue to wet the bed at night she will raise the matter with a general practitioner to seek advice for referral of the children to a child psychologist and follow any advice given by such child psychologist. I would add that there was much evidence at the trial in relation to K’s and C’s bed wetting, including by Ms V, social worker, who provided a family report 11 May 2009, and who in her oral evidence said that there was some indication that K’s and C’s bed wetting was more likely to be psychological than physical, such that the K and C are “probably struggling” with various matters. Again, I would refer to the definition of “major long-term issues” as defined in s4 of the Act, which includes the matter of the children’s health. Further, I propose to include an order that the parties keep each other informed as to any health practitioner engaged by either of the parties in relation to K and C, and to ensure that the parties have access to information concerning such. Thus, the father will be able to avail himself of such information, and consult with such general practitioner and/or child psychologist as well as the mother, if he has residual concerns, he will be able to take such steps as he may then consider appropriate or be advised. In the meantime however it is inappropriate to make the orders proposed by the father.
It is inappropriate to make orders as to the costs of any potential future proceedings concerning K and C.
The matter of K’s and C’s school holidays, and the incidence of Christmas Day, will be addressed below.

The issues that remain

The orders proposed by the independent children’s lawyer included matters which were not controversial, as to information, communication between the parties, non denigration and the like. In the circumstances I will make such orders.
One order proposed by the independent children’s lawyer is that the mother and the father each within six months attend and complete a parenting orders program, either through Relationships Australia or the like, to assist them to learn to communicate with each other effectively in relation to parenting issues concerning the children. I have considered whether the mother and the father merely should be encouraged to attend such voluntarily, or be coerced by court order. The particular circumstances of the case, however, evidenced by the history of the matter, lead me to the conclusion that it would be in K’s and C’s best interests to make an order requiring the mother and the father to attend and complete a parenting orders program, and I will so order.
In relation to S, the father sought no orders. In the circumstances, it is appropriate that I make an order that S live with the mother. I have mentioned already that I will make an order that the mother have sole parental responsibility for S.
The father does not seek that S, along with K and C spend time with him. This perhaps is unfortunate for S, given Ms V’s firm view that S, K and C identify as a strong sibling group. However, fortunately for S, the paternal step great grandmother seeks to have S included in time which K and C will spend with her, if he wishes to attend, and I will so order.
The issues thus which remain for my determination relate to:
·Holiday time which K and C will spend with the father;
·Holiday time which S, K and C will spend with the paternal step great grandmother;
·Telephone communication between K and C and the father;
·Telephone communication between S, K and C and the paternal step great grandmother.
Before proceeding to these matters, however, it is necessary to refer to some background.

Relevant background

The father is 33 years and the mother 29 years.
They met and commenced cohabitation in about late 1996.
S was born in April 2000, and K and C in June 2001.
The mother and the father married in September 2001 and separated in September 2003.
At the time of the separation the children’s ages were S 3½ years, and K and C a little over 2 years.
The history of orders made before the current proceedings is evident by ex 1, which comprises four orders dating between 8 December 2003 and 4 October 2005.
The history of time the children have spent with each parent since the separation is set out in ex 5.
Presently, the children live with the mother in Brisbane, next door to her mother, the maternal grandmother, and her husband, the step maternal grandfather. This arrangement has subsisted since about November 2007, when the mother relocated from Cairns to Brisbane with the children, at about which time, or shortly before, the father had relocated from Cairns to the Northern Territory without the children.
At the time of the trial the father lived in the Northern Territory, with his partner Ms N, who whom he has resided now for about four years. The father and Ms N have two children, O 2 years and J about four months at the time of the trial. Ms N has a daughter, E, from a previous relationship, who shares the same birth date as K and C.
The paternal step great grandmother lives in Cairns, with Mrs Tyner, who is the paternal grandmother.
It is undoubtedly the case that the paternal step great grandmother and the paternal grandmother, while the mother and the father and the children lived in Cairns, became very significant persons in the lives of all three children, at times largely taking parental responsibility for them. It is undoubtedly the case also that since the mother and the children have moved to Brisbane, the maternal grandmother and the step maternal grandfather have performed a similar role.
Indeed, it must be observed, that all three children are fortunate to have the care, interest and devotion of their parental elders on both sides.

Principles relevant to parenting orders

Children’s best interests paramount

Pursuant to s 60CA of the Family Law Act 1975 (Cth) (the Act), in determining whether and if so what parenting orders in relation to a child should be made, the Court must regard the best interests of the child as the paramount consideration.

Objects and principles underlying objects

Section 60B of the Act provides that the objects of Part VII of the Act, which relates to children, are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children;

and that the principles underlying the objects are that, unless it would be contrary to a child’s interests:
·children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

·children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

·parents should agree about the future parenting of their children; and

·children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Determining what is in a child’s best interests

Section 60CC of the Act provides that the Court must consider the matters set out in s 60CC(2) and (3), described as the “primary considerations” and the “additional considerations”.
The primary considerations are:
·the benefit to the child of having a meaningful relationship with both of the child’s parents; and
·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations are too numerous to set out. However, I will make specific reference to them below, to the extent that each may be relevant.

Parental responsibility

Under s 61C of the Act, subject to any orders of the Court, each of the child’s parents has parental responsibility for that child.
Under s 61DA of the Act, the Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility for the child unless there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or another child who, at the time, was a member of that parent’s family or that other person’s family, or family violence.

Equal time/substantial and significant time

Under s 65DAA of the Act, if a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child:
·the Court must consider whether the child spending equal time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making an order to provide for the child to spend equal time with each of the parents; and
·if an equal time order is not made or to be made the Court must consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making such an order.

Section 65DAA(3) and (4) of the Act provide that a child will be taken to spend substantial and significant time with a parent only if the time the child spends with the parent includes both:
·days that fall on weekends and holidays; and
·days that do not fall on weekends and holidays;

and:

·allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child; and

·allows the child to be involved in occasions and events that are of special significance to the parent,

although regard may be had to other matters.

Section 65DAA(5) of the Act provides matters to which the Court must have regard in determining whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parents including:
·how far apart the parents live from each other; and

·the parents’ current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents; and

·the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

·the impact that an arrangement of that kind would have on the child; and

·such other matters as the Court considers relevant.

Prior parenting plans

Section 65DAB of the Act provides that the Court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child’s parents if doing so would be in the child’s best interests.

Other provisions

The Act provides several other provisions which may apply in a particular case and to which reference will be made if applicable in this particular case.

Weight

Matters affecting weight are primarily for the trial Judge to attribute in the exercise of his or her discretion, subject to any error of law in that exercise.

The evidence

Having regard to the narrow but important matters remaining in issue, it is not necessary to refer to all of the evidence.
I will however touch upon such parts of the evidence as I consider relevant to the matters remaining in issue, and will proceed now to consider the statutory factors relevant to the matters remaining in issue.

The statutory matters

Although I will make an order for equal shared parental responsibility in relation to K and C, as the father and the mother now both propose that K and C live with the mother it is not necessary to consider s65DAA of the Act nor, indeed, many of the s60CC factors relating to a determination of K’s and C’s best interests and I will deal thus only with such of these matters as may appear to be immediately relevant.

The children’s best interests

Section 60CC(2) – the primary considerations

Section 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both of the children’s parents

This matter is not in issue. It is common ground that there is benefit to K and C of having a meaningful relationship with both of their parents.

Section 60CC(2)(b) – the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence

This matter is not in issue.

Section 60CC(3) – the additional considerations

Any views expressed by the children

This matter is not in issue.

The nature of the children’s relationships

This matter is not in issue. However, given the geographical distance between the father’s and the mother’s homes, it is necessary to ensure that K’s and C’s relationship with the father and his extended family is maintained.
The children have extended family on both sides. I have mentioned some on each side, but not as yet the maternal great grandparents who live north of Brisbane, with whom the children enjoy the beach and barbeques.

Willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent

This matter is not in issue, despite the parties’ own differences.

The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of the parents or any other child or person (including any grandparent or other relative of the children) with whom he or she has been living

This matter is not in issue in relation to the narrow matters to be decided.

Practical difficulty and expense

There is a major issue of practical difficulty and expense in relation to the children spending time with the father and also with the paternal step great grandmother having regard to the geographical distances between the parties’ homes.

The parties’ capacities to provide for the children’s needs, including emotional and intellectual needs

This matter is not in issue having regard to the matters for decision.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the court thinks are relevant

This matter is not in issue having regard to the matters for decision.

The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents

The parties each have a responsible attitude to the children and to their role as parents, despite their own differences.

Family violence involving the children or a member of the children’s family or family violence orders

This is not a relevant factor.

Whether 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 children

The father’s written submissions include, as I have mentioned, that soon he and his new family may relocate from the Northern Territory to Cairns. However, it is plain from the father’s written submissions that the factors which have lead to his decision that K and C should live with the mother are unrelated to whether he lives in the Northern Territory or in Cairns and thus unrelated to his possible relocation to Cairns. It is important that this be clearly stated, so that if the father should relocate to Cairns such would not and could not amount to a change of circumstances in the sense explained in Rice v Asplund (1979) FLC 90-725 (see also Miller & Harrington (2008) FLC 93-383 at [72], [100]-[101]).
I propose to make provision in the orders relating to holiday time and telephone communication that they will apply subject to any written agreement by the parties so as to allow the parties flexibility as parents and in the hope of avoiding future proceedings.
Thus, the orders proposed to be made in my view are those least likely to lead to the institution of further proceedings.

Section 60CC(4) – the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent

It is necessary to consider the extent to which each of K’s and C’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent; and in particular the extent to which each of K’s and C’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to K and C; and to spend time with and communicate with K and C; and has facilitated or failed to facilitate the other parent participating in making decisions about major long-term issues in relation to K and C; and spending time with and communicating with K and C; and has fulfilled or failed to fulfil the parental obligation to maintain K and C.
Largely, each of the parents has fulfilled these obligations, and it is not necessary to refer to occasions when each has failed.
The father has a concern that assessed child support which he pays to the mother may not be spent by her on the children. Hence, his proposal that he make specific non agency payments as set out in his written submissions. The mother’s material and submissions refer in detail to the children’s costs, inferring that the father has little real idea of the extent and frequency of the real costs burden. I have already mentioned however the options available to the father if he should wish to meet his obligations by payments other than assessed child support. He is not however at liberty to make unilateral decisions along the lines proposed in his written submissions to which I have referred.

Discussion, reference to the evidence and conclusions as to the matters in issue

Children’s holidays

I have referred already to the father’s written submissions in which ultimately he sought three weeks (not four weeks) of the Christmas school holidays, but on the basis of flexibility for long weekends, and all of the June/July school holidays.
The mother, in her written submissions, proposed that K and C spend four weeks of the six week Queensland gazetted Christmas school holiday period with the father, to alternate between the first four weeks and the last four weeks in alternate years “this giving each party alternate Christmas with the girls”, the mother specified that K and C should “never fly on or before Boxing Day”. The mother favoured that Christmas 2009 be with her, for reasons which she explained. The mother proposed that K and C spend the two weeks of the June/July Queensland gazetted school holiday period, which is the full period of it, with the father.
I have referred already to the independent children’s lawyer’s proposal being four weeks Christmas and two weeks June/July with the father.
The father proposed that he and the mother share K’s and C’s travel costs, as did the independent children’s lawyer. The mother proposed that the father pay the travel costs, having regard to his greater income and other workplace benefits to which she referred, which she asserted compare very favourably with her own financial circumstances. The independent children’s lawyer proposed that the father arrange and pay for the children’s flights “as far in advance as possible to obtain the cheapest fare possible.”
There is difficulty, as I have mentioned, in any proposal that K and C spend four weeks of the Queensland gazetted Christmas school holiday period with the father being the first four weeks in one year and the last four weeks in the next, if the objective, as was stated during oral argument to be common ground, is that the children will spend Christmas Day in alternate years with each of the mother and the father. In the 2009/2010 Queensland gazetted Christmas school holiday period extending from Monday 14 December 2009 to Friday 22 January 2009 Christmas Day is in the second week, which has effect that the first four weeks/last four weeks proposal would work for the current year. However, as I have mentioned, Christmas Day more usually falls in the third week of the Queensland gazetted Christmas school holiday period. Thus, to ensure that the children spend alternate Christmas Days with each of the mother and the father, the last four weeks in some years will need to be shortened, as recognised by all parties and the independent children’s lawyer during argument. The mother, sensibly, has sought that the children not travel on Christmas Day or Boxing Day. Thus, in those years, I will order that the children’s travel occur on 28 December, so that the mother and the children will be able to use 27 December for packing and such arrangements, particularly as all flights for the children will commence no later than 12 noon on any travel day, which was sought during argument and which I propose to order.
The June/July school holidays are not contentious.
It is appropriate in my view that the mother and the father share the costs of the children’s return flights for the Christmas and June/July holidays. Although the father is earning well, he is responsible for the support of Ms N and O and J, as well as for the payment of assessed child support for K and C. Further, although the father is not responsible, as I understand the matter, for child support for E, Ms N’s older child, she nonetheless resides in the father’s home so that it comprises five people.
I do not propose to order that the father obtain the “cheapest fare” because often such fares are not refundable and in my view it would be preferable that the fares purchased have some measure of flexibility if, for example, K and C should wish to return earlier to Brisbane and the father and the mother agree to that.
I will not order, as suggested during argument, that the children’s initiating flights be between 8.00am and 12 noon, because often favourable fares are for flights originating at 6.00am or 7.00am. However, having regard to travel distance, as mentioned I will order that all flights commence no later than 12 noon on any travel day.
The mother sought, but I will not order, that the paternal step great grandmother accompany K and C to the Northern Territory to assist Ms N. This is a domestic matter best left for the father in respect of arrangements with his extended family. Moreover, the father has foreshadowed the possibility of returning to Cairns.
I note the father’s proposal as to long weekends, and to his desire that there be flexibility in this regard. The mother however put that a long weekend for K and C, even if in Cairns, would require travel up and down within a three day period which in her view might be too much for them. The father I note did not seek any orders in relation to long weekends, but rather referred to them in the context of a future matter which he might propose to the mother, along with, as included in his submissions, the possibility of K and C spending time with the father and his extended family in northern New South Wales when visiting Ms N’s family. As mentioned, I propose to frame the orders so that the parties may make other arrangements as may be agreed in writing.
I will order, however, that if the father should propose and the mother agree other times with the father, whether at his place of residence or elsewhere, the father pay the full cost of K’s and C’s travel costs.
As to the paternal step great grandmother, the independent children’s lawyer, with whom the father agreed, proposed that K and C spend the first ten days of the September/October Queensland gazetted school holiday period with the paternal step great grandmother, plus such additional time as may be arranged when K and C are spending time with the father. The mother also agreed that K and C should spend ten days of that period with the paternal step great grandmother.
The independent children’s lawyer proposed that the paternal step great grandmother and the mother share the costs of the children’s flights for the September/October school holiday period.
Further, for as long as the father may remain in the Northern Territory, if changeovers occur at Cairns airport it is not contentious that it would be in K’s and C’s best interests for them to spend time with the paternal step great grandmother either at the airport, or overnight, as may be arranged by the father according to the flight schedules.
The mother seeks to make the flight bookings, which in my view is her prerogative and I will so order. The circumstance of the mother making the bookings will have effect that she will be able to ascertain S’s wishes in advance, and book a ticket also for S if he is to travel with K and C.
It is plain that whatever time the children spend with the paternal step great grandmother will be spent also with the paternal grandmother Mrs Tyner who lives in the same home as the paternal step great grandmother.

Telephone communication

The interim orders made on 25 June 2009 provided for three occasions of telephone communication between K and C with the father in each week and three occasions of telephone communication between S, K and C with the paternal step great grandmother in each week.
The interim orders provided for the father and the paternal step great grandmother respectively to initiate the calls and that the mother ensure that the children be available and be afforded privacy for the calls.
The mother said, which I accept, that six times per week is “too much” for K and C and indeed referred to the onset of bed wetting as being related to the commencement of the regime of the six telephone calls in each week. The mother said that she had been advised by a medical practitioner that the onset of the children’s bed wetting “could be psychological”.
In these circumstances, sensibly, it was common ground (in particular, the father agreed with the orders proposed by the independent children’s lawyer) that the children should have only four telephone calls in each week, two from the father and two from the paternal step great grandmother. As to the times, the mother said that 6.30pm was too early as it interfered with the children’s meal times and family routine. The father, it appears accepted this by agreeing with the independent children’s lawyer’s proposed orders that the father’s two telephone calls be initiated by him on each Thursday and Sunday evenings between 7.00pm and 7.30pm Brisbane time. However, I propose to order that the father’s calls occur on Tuesday and Sunday evenings, at that time, because, as will be seen, there will be a Thursday morning telephone call in each week from the paternal step great grandmother. In short, the paternal step great grandmother gave evidence that Mrs Tyner, the paternal grandmother, works from 11.30am until 9.00pm six days in each week, except Mondays so that in order to include the paternal grandmother for two calls in each week one would have to be on a Monday evening. So that the calls are not too close together, the time 7.45am-8.15am on Thursday mornings was proposed, which in my view is sensible. Thus, I will order for the paternal step great grandmother that the calls to be initiated by her be between 7.00pm and 7.30pm on Mondays and 7.45am and 8.15am on Thursdays.
I propose to order also, as put in submissions, and not opposed, that the telephone calls to be initiated by each of the father and the paternal step great grandmother may include Father’s Day, Christmas Day when not with them, and “all birthdays” which I take to include the birthdays of Ms N, E, O and J; and similarly when the children are not with the mother the same obtain in relation to Mother’s Day, Christmas Day and “all birthdays” but that there not be specific times for such special days.

Best interests

I am satisfied, for the reasons explained, that the orders I propose to make are in the children’s best interests.

I certify that the preceding one-hundred and eight (108) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly

Associate:

Date: 14 December 2009.

[2009] FamCA 1252

14 December 2009

Key Legal Topics

Areas of Law

Family Law