Wenlack and Cimorelli (No 2) - [2013] FamCA 654

FAMILY COURT OF AUSTRALIA

WENLACK & CIMORELLI (NO 2)

[2013] FamCA 654

FAMILY LAW – CHILDREN – Interim Parenting – Where at issue is the time that the children spend with the father – Where the parties are in dispute about the time the father had spent with the children prior to separation – Where the mother asserted that, by reason of the time the father had spent apart from the family the father did not have a sufficiently close relationship with the children or the parenting skills to justify or permit the children spending more time with him – Where it is not appropriate on an interim hearing to make final findings of fact, particularly where it is likely that issues of credit may arise – Consideration of the best interests of the child – Where it is determined that the children spend some extended time with the father than they presently do – Whether the children should spend overnight time with the father – Where the extended time the children are to spend with the father does not include overnight night time – Where, on the evidence before the court, the issue of overnight time is deferred for later consideration by the parties and the court, if necessary..

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

APPLICANT:

Mr Wenlack

RESPONDENT:

Ms Cimorelli

FILE NUMBER:

SYC

2881

2013

DATE DELIVERED:

16 August 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

16 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Richardson SC
SOLICITOR FOR THE APPLICANT:	Barkus Doolan Family Lawyers
COUNSEL FOR THE RESPONDENT:	Ms Clifford
SOLICITOR FOR THE RESPONDENT:	Watts McCray Lawyers

Orders

That the applicant father and the respondent mother shall have equal shared parental responsibility for the children of the marriage, namely:
D born … 2008;
E born … 2009; and
F born … 2012
hereinafter referred to as (“the children”).
That, pending further order, the children shall spend time with the father as follows:
(a)       From after school or day care until 6.30 pm each Wednesday;
(b)       From after school or day care until 6.30 pm each Friday;
(c)       From 8.30 am until 4pm each Sunday;
(d)       For a period of not less than three (3) hours on each of:
i.    the children’s birthdays;
ii.     Christmas Day;
iii.   the father’s birthday; and
iv.    Father’s Day
in the event the children are not ordinarily spending time with the father pursuant to these orders, as agreed between the parties and, failing agreement, from 3 pm until 6 pm if the day is a school day or from 9 am until 12 noon if the day is on a weekend.
(e)       At any other time as agreed between the parties in writing.
That the children shall otherwise live with the mother.
That for the purpose of effecting changeover in accordance with these orders changeover shall occur at the children’s preschool or school in the event that it is a school day or, if not on a school day, the father shall collect the children from the mother’s place of residence at the commencement of the father’s time with the children and the mother shall thereafter collect the children from the father’s place of residence at the conclusion of the father’s time with the children.
That each parent shall inform the other in writing of any change to his or her residential address not less than seven (7) days prior to such change occurring and of any change to his or her contact telephone number within forty-eight (48) hours of such change occurring.
That the parties may communicate with the children each evening the children are in the care of the other parent and the resident parent shall facilitate and encourage such communication by telephone, “Skype” and/or “FaceTime” and for the purpose of this order the parties shall ensure that the children are available to communicate with the non-residential parent between 5 pm and 6 pm.
That each party shall notify the other as soon as possible and, in any event within twenty-four (24) hours, of any serious injury or illness suffered by the children whilst with that party.
That the parties shall do all acts and execute all documents necessary to provide all authorities and to give all necessary consents to ensure that the Principal and staff of each of the child’s school or pre-school, together with the child’s treating medical professionals, are directed and authorised to communicate with and provide information and copies of documents directly to each parent upon each parties’ request at their own cost.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wenlack & Cimorelli 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 2881 of 2013

Mr Wenlack

Applicant

And

Ms Cimorelli

Respondent

REASONS FOR JUDGMENT

Introduction

These are interim parenting proceedings which deal with the time that the three children of the marriage aged 5, 3 and 1, are to spend with the father.
Presently the children live with their mother and spend time with their father on Wednesday afternoons with him collecting the eldest child from school at 3 pm and the two younger children from day care at 3.30 pm. They return to their mother at 6.15 pm. On Friday afternoons the father collects the two younger children from day care at approximately 2 pm and the eldest from school at 3 pm and returns them to the mother at 6.15 pm. On Sundays the children spend between 8.30 am and 12 noon with the father.
The mother seeks to reduce the time the children spend with the father so that they are returned to her at 6 pm on Wednesday and Friday and at 11.30 am each Sunday.
The father seeks to have the children overnight on Wednesday and Friday nights and from 8.30 am until 6.30 pm on Sundays until the conclusion of Term 3, 2013 after which time he also seeks to have the children overnight on Sunday nights. From the commencement of 2014 he seeks overnight time each Wednesday night, overnight time on Friday each alternate week and, in the other week, overnight time on Friday, Saturday and Sunday.
The mother sought an adjournment of this hearing until after a Family Report could be obtained. Whilst that would only take a few months, given that both parents sought immediate changes to the parenting arrangements of the children and asserted that the present arrangements were not ideal, the better course, and the course that was in the best interests of the children, was to proceed with the hearing.

Background

Ms Cimorelli (“the mother”) was born in 1978 and is currently 35 years of age. Mr Wenlack (“the father”) was born in 1973 and is currently 40 years of age.
The parties commenced cohabitation in mid to late July 2005. At that time the father was employed as a medical intern at Suburb J Hospital. At some time in 2005 the parties moved into a property at Suburb L which was owned by the mother and her sister.
The parties married in 2007. In that year the father was a working at H Hospital.
In 2008 the father commenced training as a specialist initially at H Hospital.
D was born in 2008.
In January 2009 the parties moved to Newcastle where they stayed until approximately January 2010 so that the father could undertake his placement at the G Hospital.
E was born in 2009.
In November 2009 the parties purchased a property at Suburb I into which the family moved in 2010.
From mid-2010 to mid-2011 the father was engaged in extensive study for his specialist exams which he passed in 2011.
For at least part of the period in which the father was studying for his exams the mother and the children lived with her parents. It will be necessary to return to the parties’ evidence on that matter later.
In 2012 the mother commenced to study law at J University and the father commenced working as a specialist.
F was born in 2012.
In December 2012 F commenced attending day care four days per week.
The parties spent much of December 2012 and January 2013 apart. They were at issue as to whether this was a separation or not.
The parties separated on or about 15 April 2013.

Relevant Principles

The paramount interest to be taken into account in parenting proceedings are the interests of the children (s 60CA of the Family Law Act). In doing so the Court is obliged to take into account the presumption in favour of equal shared parental responsibility imposed by s 61DA.
In these proceedings, both parties sought an order for equal shared parental responsibility. If the presumption applies the court is then compelled by s 65DAA to consider whether the child should spend equal time or substantial and significant time with each parent.
In dealing with these matters the court is required to take into account the primary and secondary considerations set out in s 60CC.

Disputed Evidence

The parties’ evidence revealed a significant dispute about the time the father had spent with the children, particularly in 2009 when the parties were living at Newcastle and in 2010 to 2011 when the father was studying for his specialist dermatology exams. The relevance of these disputes was said, by the mother, to be the father’s lack of time spent with the children. It was asserted by her that, by reason of the time he had spent apart from the family, he did not have a sufficiently close relationship with the children or the parenting skills to justify or permit the children spending more time with him.
As to the first, the mother asserts that although the father’s regular hours were 8 am to 4.30 pm he was on call for a significant part of the time and thus away from the home for much longer periods. The father disputes this.
As to the second, the mother said that in early 2010 the father asked her if the mother and the children could live with the mother’s parents because he found the presence of the mother and the children to be disruptive to his study. The mother says that thereafter she and the children began living with her parents in Suburb J for four days a week. Some two months later, at the father’s request, they commenced to live seven nights per week with her parents. She says that the family saw the father during this time on approximately one occasion per week for approximately three hours.
The father agrees that from early 2010 the mother and the children regularly spent nights at the Suburb J property of her parents. The father says that that was initially just one night a week to enable her to earn some money. The father agrees that, as 2010 went on, the mother spent more and more time at her parents’ home at Suburb J but he disputes that it was at his insistence.
The father says that in the lead up to his exams he would make multiple visits to Suburb J both before and after work at least four days per week and spent most of the weekends with the children.
Although both parties urged me to find that particular extrinsic facts supported their version, and thus make the factual finding which they sought on these issues, it is neither necessary nor desirable to do so on this application. It is more relevant to focus on the parties’ time they presently spend with the children and their present parenting skills. It is not appropriate on an interim hearing to make final findings of fact, particularly where it is likely that issues of credit may arise.

Section 60CC Factors

The primary considerations are under s 60CC are the benefit to the child of 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 mother was and is the children’s primary care giver. The children are young and it was not suggested by the father that they were not closely attached to their mother. The evidence would indicate the children have a meaningful relationship with their mother and the orders proposed by each of the parties will see that continue.
It is alleged by the father that for approximately one month after separation he did not see the children at all. Thereafter he has seen the children three times per week, collecting D from school at 3 pm on Wednesdays and E and F from day care at 3.30 pm. He returns them to the mother at 6.15 pm. On Friday afternoons the father collects E and F from day care at approximately 2 pm and D from school at approximately 3 pm and returns them to the mother at 6.15 pm. On Sunday mornings the father collects the children at approximately 8.30 am and returns them to the mother at approximately 12 noon.
Even accounting for the differences between the parties’ versions as to the time that the father spent with the family over the years he has been a part of the children’s lives since they were born. It was not suggested that the children did not have an appropriate relationship with him or that they should not see him regularly or frequently. Given the children’s age it is important that the children see their father regularly. This they currently do.
It is important that the children continue to maintain and develop their relationship with their father.
There is no suggestion that the children are directly exposed to abuse, neglect or family violence. There are allegations that the father, at changeover with the children, on at least one occasion, has aggressively pushed passed the mother or “shouldered” her. Consequently, she sought an Apprehended Domestic Violence Order. On 14 June 2013, without admission, the father entered into undertakings, for a period of 12 months, not to assault, molest, harass, threaten or otherwise interfere with the mother or a person with whom she has a domestic relationship.
There are no other suggestions of family violence. Neither party submitted that these events were particular significance to an outcome of the present proceedings and the allegations are not a cause for particular concern for the wellbeing of the children.
A number of other considerations arise under s 60CC.
The children are very young. There was no evidence of their views other than comments said to be made by them to the father asking why they could not stay with him. Given the children’s age, their views are of little weight.
It appears from the evidence that the children have a good relationship with each of their parents. Notwithstanding the mother’s assertions about the closeness of the relationship between the children and their father referred to earlier, there was no evidence adduced by her which would indicate that the children did not value their time with their father or that it was not of benefit to them. Her proposed orders had the children spending time with their father three days per week.
The children have clearly seen much of their maternal grandparents and the mother’s sister and her family. Indeed, a lot of the complaints of the father are that they see too much of them. The children seem to have an appropriate and close relationship with them.
Although the paternal grandmother swore an affidavit in these proceedings her evidence as to her role and interaction with the children was limited to her observations as to what occurred at changeovers and to her observations of the father as a parent. There is no evidence of the children’s relationship with her, or of their relationship with other members of the father’s family. The father gave no evidence as to who, if any, might be present if the children were to spend overnight time with him.
There is, however, no suggestion that any person who sees the children has a bad relationship with or deleterious effect upon them.
It is to be remembered that the children have spent significant time in day care and the two younger children still attend day care, on average, from 8 am or earlier in the morning until 4 pm or later in the evening. They are thus used to being away from their mother regularly and for extended periods.
The evidence, as it presently stands, seems to establish that the decisions in relation to the children are primarily taken by their mother. She has selected the day care centre and the times the children attend. The children did not spend time with their father on his fortieth birthday on 14 May 2013 or on D’s fifth birthday on 27 May 2013. This could be explained by being relatively shortly after separation but nonetheless the decision was made by the mother.
The parties agree that the times that the father is to return the children to the mother is not a sensible time. Twelve noon on Sunday is when F normally has a sleep. The mother seeks that the time the father has with the children on Wednesdays and Fridays terminate at 6pm to facilitate F being settled for sleep shortly thereafter. On Wednesdays and Fridays the father has a relatively short period of time with the children during which he has to collect them and return them to their mother. He generally bathes and feeds the children during that time. When one accounts for travel it gives him little time to play with the children or otherwise engage with them.
The changeover between parents generally takes place at the Shopping Centre, Suburb K. Since at least May, the mother generally attends the changeover with either her sister or her father. Almost invariably the father is accompanied by his mother and often by a friend of his as well. The paternal grandmother keeps detailed notes of what occurs on each occasion. Of the changeovers she said at paragraph 15 of her affidavit:
I observe [Mr Wenlack] remain close during changeovers, but he does not participate or stand near [Ms Cimorelli]. Most often, I attend to physical handovers and inform [Ms Cimorelli] of any relevant information about the children while they were in [Mr Wenlack’s] care, such as what they have eaten, any accidents or bumps and how their day was at preschool or school.
The father asserts that the children continue to be very upset upon leaving him at changeovers. He says the children appear to be very confused about the nature of the changeovers.
This is perhaps not surprising given that the parties seem to have elevated changeovers to a position of particular importance and stress with each requiring the presence of family members and friends as well as the paternal grandmother keeping detailed notes of the events at each changeover.
This indicates that the parties’ decisions as to how to handle changeovers are presently not always in their children’s best interests but are rather focussed on the conduct of the other party.
The father reports the children being upset at the time he returns them. He also says that the children are upset for at least an hour when he collects them each Wednesday. The father describes E’s behaviour as having deteriorated since separation. He asserts that the children need constant reassurance.
The mother relies on this evidence to justify her position. The father does likewise. A third possibility is that the changes to the routine of the children and the stressful changeovers are affecting the children. In the absence of either a Family Report or expert evidence as to what might be the cause of the children’s behaviour it is a safer course to proceed cautiously.
Each of the parents maintain, to the best they are able, the children.
The parenting orders proposed by the father will require the children immediately to commence overnight time with him.
The parties were in dispute as to the frequency with which this had previously occurred. The mother suggests it was on but three occasions, the father suggests significantly more. That difference cannot be resolved on an interim hearing.
It is important to bear in mind the young age of the children, particularly the two younger ones. In a memorandum to the Court the Family Consultant said:
All three children but particularly [F] and [E] are at a critical stage in their development. Children of this young age benefit from stability and routine in their care. If the parents are unable to communicate about the routine of the children it may be disruptive for the children to spend extended periods of time away from their usual routine. Children can cope with changes to their routine but it helps if changes are made in gradual increments. It should also be monitored with how children are coping with changes as if the change is too significant for them it can make them unsettled and if this occurs regularly it can hold them back from engaging in important developmental activities.

Senior counsel for the father submitted that the opinion of the Family Consultant should be discounted because not only was it only a brief interim report but more importantly because the Family Consultant appeared to have adopted the mother’s case that the father “may lack the skills to manage the cares and maintain the routine of all three children if they spend long periods of time in his care”. It is true that the Family Consultant did note that assertion of the mother but she did so in the context of summarising the mother’s assertions about the father’s parenting ability. After doing so the Family Consultant then noted the father’s claims relating to his parenting ability and then posed two possibilities which were based upon whether the court would accept the father’s account of his relationship with the children prior to separation or the mother’s account of that relationship. In those circumstances, it cannot be accepted that the paragraph quoted above from the Family Consultant’s memorandum is based upon the assertions of the mother.
The Family Consultant then continued:
The children are also at a critical stage in their development of their relationships. At this young age it is beneficial for children to see each parent regularly, generally 1-3 times a week, in order for them to develop or maintain a relationship with a key person.
Based on the available information the current arrangement may be sufficient until further information can be gained, or assessment conducted regarding the parents’ history of involvement with the children’s care, the father’s parenting skills, and the children’s development.
The recommendations of the Family Consultant support the view that a significant change in the children’s circumstances, such as spending overnight time with the father twice a week, is a very significant change from the present arrangements and is not likely to be in the best interests of the children.
In response to this senior counsel for the father submitted two things. The first was that if the court were to accept the position of the Family Consultant it would simply reward the parent who has unilaterally determined that there otherwise be inadequate time with the parents. Even if that be so, and the evidence does not enable it to be determined on this interim hearing, the court must act in what it regards as the best interests of the children having regard to the factors that presently exist. Too many and too sudden changes in the circumstances of children of this age are not desirable.
The second submission was that the court could ameliorate the impact of the change by initially extending the time the children spend with the father and then, after a period of two to three months, gradually introducing overnight time. There is force in those submissions, particularly when one takes into account that the children have spent significant time in day care and that F and E are in day care for extended periods five days per week. It cannot be said that they have spent almost all of their lives in the presence and the company of their mother and are not used to being away from her for significant periods of time.
Apart from the practical difficulty of the father having to collect the children from Strathfield return them to his home at the commencement of his time with them and then return them to Suburb L, which limits his effective time with the children, there are no other practical difficulties or expenses associated with the children spending time with each parent.
There is no suggestion that the children are not well provided for by both parents, at least as far as their physical needs are concerned. Changeover times have become a focus. The difficulties with a number of people attending changeover has already been described. Additionally, there have been difficulties with the mother trying to communicate with the father’s sisters about changeover matters because he had asked the mother not to contact him directly. The sisters refused to pass on the messages. These matters, as the evidence presently stands, indicates that the parties are focussing more on their difficulties rather than attempting to work together in the best interests of the children.
The mother complained to the Family Consultant that the father may lack the skills to manage the care and maintain routine of the children. Her counsel submitted that historically the father has carried out little by way of active parenting of the children. For the reasons given earlier that is not an issue that can be determined at an interim hearing.
Importantly, she does not seek to adduce any evidence that would indicate that the father is having any difficulty caring for the children when they are with him.
E, who is aged 3 years and 6 months was taken by both his parents to Dr M who is a developmental and behavioural paediatrician. The mother was concerned that E had problems bed wetting, night terrors, stuttering, hyperactivity, poor focusing, low frustration tolerance and that he was not using his language as appropriately as before and was not responsive to social interactions. The father was concerned about E’s frequent tantrums which were more prominent in the home environment.
Overall, Dr M had no acute concerns about E’s developmental progress and felt his behaviour changes were most likely related to the recent parental separation. The father describes the children as being clingy when it is time to return the children and that it takes E some time to settle down with him when they first see each other on Wednesdays. Each of the parties relies on these difficulties in support of the orders which they propound.
The separation of the parties is relatively recent. It is not surprising that the children are still experiencing difficulties dealing with the separation of their parents particularly when there are difficulties communicating with the parents and where the circumstances surrounding changeovers have been not appropriate.
As the Family Consultant said the changes to children’s routine should be made gradually and if the change is too significant for them it can make them unsettled. Dr M said:
In regard to [E’s] activity level and impulsivity level, there be no reported concerns of the child care centre. His emotional activity at home may be understandably higher due to the recent parental separation. He needs to be provided with a calm, stress free environment, with consistent rules of consequences and rewards for good behaviour.
Each of the parents seems to wish the best for their children and they believe they are trying to do the best for their children. Unfortunately, as has been indicated above, at times their personal difficulties have caused them to come into conflict over how their children’s needs might best be met.
There are no other matters raised by s 60CC that are relevant for the present determination.

Conclusion

Section 65DAA requires the court, where the child’s parents are to have equal shared parental responsibility, to consider whether spending equal time with each of the parents would be in the interests of the child.
Notwithstanding that neither parent sought such an order the court is required to consider that possibility. It is not in the best interests of the children to spend equal time with each of the parents, at least at present, because of their age, because this is an interim hearing and there are unresolved evidentiary issues and because such a change would be too dramatic and sudden and is likely to be grossly disruptive to their development.
In any event, it is it is not reasonably practical for the children to spend equal time with their father because of their age, the requirement to collect them from and deliver them to school and the fathers working hours.
The court is next required to consider whether the children should spend substantial and significant time with each of the parents. That time will include days that fall on weekends and on holidays, other days and will enable the parent to be involved in the child’s daily routine and occasions that are of particular significance to the child or the parent.
The present orders meet that requirement to a degree. The children see their father both week-days and weekends. There will need to be orders that enable the father to spend time with the children on days that are of particular significance to the child and to him. Such orders are important to maintain and develop the relationship between the children and their father.
Further the evidence on this interim hearing indicates that the time the father has with the children is limited because of the travelling time involved. It is desirable that the children spend some more time with their father so it is quite clear that they are spending substantial and significant time with him. That is clearly in their best interests.
The time that the children can spend with the father is limited by some practicalities. The children are young and F needs to be in bed by 7 pm at the latest each evening. They attend school or day care. The Sunday time the children spend with the father is presently curtailed in order to return F to her mother for her midday sleep.
The former difficulty can be remedied only by overnight stays whereas the latter can be dealt with by extending the time the father has the children on Sundays.
The father works four days per week working extended hours on two of those days. The father does not work on Fridays. Although in his evidence he indicated that he had time available to see the two younger children on Fridays neither party proposed that the two younger children spend extended time with him on Fridays. D is, of course, at school until 3 pm.
Taking these things into account it is desirable that the children see their father for more time than they presently do so as to develop a meaningful relationship as possible with him which is in their best interests.
It would be reasonably practical for the father to have the overnight time that he seeks or the lesser time proposed by the mother. If overnight time is not appropriate at this stage, it is not reasonably practical for the father to have significantly longer time on weekdays because of the need to collect the children from school and day care and to return the children to the mother so they can be in bed at a reasonable time. Extended time on Sunday is reasonably practicable.
The significant issue, therefore, is whether there should be overnight time or not, and if so, when it should commence.
The recommendation of the Family Consultant is that “the current arrangement may be sufficient until further information can be gained”. The children are still very young. Their parents have only recently separated and the children, especially E, are having difficulty adjusting to their parents having separate lives. It is not in their best interests for them to be further stressed by another change in their circumstances relatively soon after the recent separation. At least for the last few months, which is a fairly long time for the two younger children, the longest the children have been in their father’s presence alone is some three and a half hours.
Each of these factors points against a significant change in their children’s circumstances at this stage.
It is also important to recognise that this is an interim hearing, based on limited evidence, which reinforces the need to proceed with caution.
Having regard to the recent separation, the fact that these proceedings have just been commenced in this Court and that there will shortly be a first day hearing before a judge, with the assistance of a Family Consultant, the better course is to defer the issue of overnight time with the father for later consideration by the parties, and the court, if necessary.
The parties, and the court, will then be in a better position to assess how the children have coped with the relatively small changes to the time they spend with their father pursuant to the orders made in this matter today. It will be clearer as to how quickly they adapt to changes with their routine. It will also be consistent with acting slowly and with caution in relation to significant changes to the parenting arrangements of very young children. It will also mean that a gradual introduction of overnight time, if that is then appropriate, could then take place. If that is to then occur it would be occurring not significantly later than if overnight time were now ordered to be commenced in three months.
It is, however, appropriate to make some limited changes to the time that the children spend with their father so as to try to maintain and develop their relationship with him. Such changes will not significantly change their routine.
Because the youngest child goes to bed at 7 pm the time with the father on weekdays is necessarily limited. In order to maximise the time the children spend with the father it is appropriate that the children be returned at 6.30 pm. Whilst this may give the mother slightly less time to settle the children before their bed it hopefully will assist the father to bathe and feed the children and get them ready for return to their mother in a somewhat less hurried manner so that they may be somewhat calmer when they are returned. He may be able to spend some time simply being with the children. For the same reason on Sundays it is appropriate that the father have some longer time with the children. This will also overcome difficulties of trying to return the children when F is ordinarily having her midday sleep.
Accordingly, I make orders as set out at the commencement of my Reasons for Judgment.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 4 September 2013.

Associate:

Date: 3 September 2013