West and West

[2008] FamCA 1044

FAMILY COURT OF AUSTRALIA

WEST & WEST [2008] FamCA 1044

FAMILY LAW – Children – With whom children live

APPLICANT: Mr West

RESPONDENT: Ms West

FILE NUMBER: PAC 2064 of 2008

DATE DELIVERED: 25 June 2008

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: STEVENSON J

HEARING DATE: 6 June 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Warda, Coleman & Greig

SOLICITOR FOR THE RESPONDENT: Mr Chesters, Norwest Family Law

Orders

1. That the order of Magistrate Hyatt of 2 May 2008 be set aside and the appeal filed 2 May 2008 by the Appellant Father be allowed.

2. That the father and the mother have equal shared parental responsibility for the children:      

   B born … March 1992

   N born … March 1994

   M born … May 1997

   C born … June 1998

3. That the father have sole parental responsibility for making decisions about the day to day care welfare and development of the children while the children are living with him and that the mother have the sole parental responsibility for making decisions about the day to day care welfare and development of the children while the children are living with him.

4. That the child N live with the father.

5. That the mother spend time with the child N by agreement between the parties and in accordance with N wishes.

6. That the child B live with the mother.

7. That the father spend time with the child B by agreement between the parties and in accordance with B’s wishes.

8. That the children M and C live with the father as follows:

   8.1from the conclusion of school on Thursday until the commencement of school on the following Wednesday in each alternate week, as from 26 June 2008.

   8.2for one half of M and C’s school holiday periods in each year as agreed between the parties and failing agreement for the first half in school holiday periods commencing in odd numbered years and the second half in school holiday periods commencing in even numbered years

   8.3from 12:00noon on 24 December until 12:00noon on 25 December in each even numbered year

   8.4in the event that Fathers Day falls on a weekend when the father would not otherwise spend time with the children pursuant to these orders then from 9:00am to 5:00pm on that day

   8.5at such other times as the parties may agree.

9. That the children M and C live with the mother at all other times.

10. That the children M and C live with the mother from 12:00noon on 25 December until 12:00noon on 26 December in each odd numbered year.

11. That the children M and C live with the mother from 9:00am until 5:00pm on Mothers Day if they would not otherwise be in her care on that day.

12. 12.1    that the father collect M and C from and return them to their school at the commencement and conclusion of all periods of time prescribed by order 8.1

    12.2that the parties meet at a McDonalds Restaurant approximately midway between their homes, the address of which is to be confirmed in writing within 7 days of the date of these orders for the purpose of effecting all other changeovers.

13. That the children shall be at liberty to telephone the father or the mother or any other significant family member as they so choose.

14. That the parent with whom the children are not living with may telephone the children each Sunday and Wednesday at 8:00pm and the parent with whom the children are living at that time shall take all reasonable measures to ensure the children are available to take the call.

15. That the mother forthwith provide the father with telephone contact details of both a landline and mobile telephone on which he can telephone the children in accordance with these orders.

16. For the purpose of these orders the children’s school holiday periods shall be deemed to commence at the conclusion of school on the last day of school term and conclude at the commencement of school on the first actual school day of the following school term.

17. That within 7 days after the date of these orders the parties do all things necessary to authorise and direct the children’s schools to provide to the husband and wife at the expense of the husband and wife, copies of all school reports, school circulars, school notices, school invitations, school correspondence and other documents concerning the education and school activities of the children.

18. That each of the parties notify the other as soon as practicable in the event that the children suffer any illness or injury requiring attendance at or admission to a hospital or requiring specialist medical treatment.

19. That each of the parties liaise with the other parent in relation to all medical appointments and recommended treatment regimes as required for the children and shall consult the other parent in the event of any proposed change to the children’s medical or behavioural treatment plans and provide the other parent with the details of any proposed appointment to enable the other parent to attend at any such appointments.

20. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2064  of 2008

MR WEST

Applicant

And

MS WEST

Respondent

REASONS FOR JUDGMENT

the proceedings

1. Mr West (“the father”) and Ms West (“the mother”) are the parents of four children:

   B born in March 1992 (16) 

   N born in March 1994 (14)

   M born in May 1997 (11)

   C born in June 1998 (9)

2. The parties separated on 26 March 2008, when the mother left the family home with the four children. The father remained in the property with Mr K.  Both parties had been in a relationship with Mr K since 2001 and he lived as a member of the family unit from about 2002 or 2003.

3. In April 2008 M and C spent a period of time with their father by agreement between the parties.  The father was to return them to the mother on 28 April 2008 but failed to do so.  N has been living with his father since 29 March 1994 and B has been with her mother since the date of separation. 

4. On 30 April 2008 the mother obtained an order for the return of M and C in the Local Court. The father filed an application for a stay and an appeal against these orders on 2 May 2008. 

5. On 6 May 2008 the father’s application for a stay of the orders was dismissed.  Interim orders were made to the effect that M and C live with their mother and spend time with their father each alternate weekend and for half of all school holidays.  There was a further interim order to the effect that the children remain at S Public School.          

6. The father now seeks interim orders that M and C live with each parent on a week-about basis.  He proposes that N live with him and spend time with his mother as the parties agree, and subject to his wishes.

7. The mother proposes that M and C live with her and spend time with their father each alternate weekend from Friday afternoon until Monday morning and for half of all school holidays.  She consents to an interim order that N live with his father and seeks that he spend defined periods with her. 

8. It was agreed at the interim hearing before me on 13 June 2008 that there be no orders in relation to B, having regard to her age. It was also agreed that the parties should have equal shared parental responsibility for all four children.

9. It was further agreed that N will continue to live with his father.  There was a dispute as to whether there should be any orders for him to spend defined time with his mother or whether it should be left to him to make that choice.

10. There are numerous issues of fact about which I am unable to make findings in this interim hearing.  These matters must await a final hearing, which will allow the opportunity a proper exploration. 

Section 60CC(2):  The Primary Considerations

section 60CC(2)(a):           the benefit to the child of having a meaningful relationship with both of the child’s parents;  and

section 60CC(2)(b):          the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. The proposals of each of the parties implicitly recognise that M and C will benefit from a meaningful relationship with each of their parents.  In my view the same applies to B and N but the extent to which court intervention can assist in that regard is problematic, at this stage.  This observation applies particularly to B, in respect of whom neither party seeks orders in any event. 

2. The evidence does not persuade me that there is any need to protect the children from abuse, neglect or family violence.  There were numerous allegations and counter-allegations made by each of the parties as to the conduct of the other.  In my view, however, none of these allegations reach the level of concern contemplated by this factor. 

Section 60CC(3):  The Additional Considerations

section 60CC(3)(a):            any views expressed by the child and any factors (such as the child’s maturity or level of understand) that the court thinks are relevant to the weight it should give to the child’s views;

1. There was no independent evidence of the views of any of the children as to parenting arrangements.   It can be inferred that B and N have clear views about where they wish to live.  The basis of their views, in terms of possible parental influence, is a matter for speculation only at this stage.

2. Each of the parties maintained that M and C have expressed a wish to live with him or her.  It could well be that the boys have made these statements.  I cannot determine whether they are a true indication of their views at this point.

   section 60CC(3)(b):          the nature of the relationship of the child with:

   (i)each of the child’s parents;  and

   (ii)     other persons (including any grandparent or other relative of the child);

3. Nothing in the evidence suggests that M and C have other than a good relationship with each of their parents.  There was also no evidence to indicate any difficulty in their relationship with Mr K, who continues to live with the father. B’s relationship with her father is obviously problematic, as is that of N and his mother. 

   section 60CC(3)(c):  the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

4. It was submitted that the father has demonstrated a lack of willingness and ability to encourage a close and continuing relationship between the children and each of their parents.  It is true that N has not seen his mother since he went to live with his father on 29 March 2008.  The father maintained that the mother has not attempted to see N and that he has given instructions to staff at the school to allow her to see him at any time.  The father also said that he was unable to contact the mother by telephone and he was unaware of her new address after the date of separation.  The evidence does not enable me to sheet home responsibility for the lack of contact between N and his mother to the father.

5. On the other hand, the father complained that the mother did not facilitate any contact between him and M and C between 29 March 2008 and 19 April 2008.  The evidence did not provide any real explanation for this break in their time together.

6. It seems to me to be likely that the difficulties which the father experienced in seeing M and C in the early stages of the separation were caused by the emotionally fraught situation in which the parties found themselves, coupled with a strong desire on the part of each of them to secure residence of M and C.  I am inclined to the view that both the father and the mother would comply fully with orders of the court in future.  With the input of B and N, it may well be that the four children will make their own arrangements to see each other if they live in fairly close proximity.

   section 60Cc(3)(d):  the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   (i)either of his or her parents;  or

   (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

7. The children’s circumstances changed substantially following the separation of their parents.  In particular M and C have been in the care of each parent at various times.  Their experiences since 26 March 2008 must have been most unsettling for them.

8. B and N have lived continuously with one of their parents since the separation, in practical terms.  The downside for them is that they have not had contact with their other parent. 

9. The change sought by the father would increase M and C’s time with him from three nights to seven nights per fortnight.  This arrangement will also increase their time with N but, obviously, would reduce their interaction with B. 

10. Another effect of the change proposed by the father is that M and C would return to live in the family home.  There was no real evidence as to their accommodation with their mother, as she refuses to disclose her address.

    section 60CC(3)(e):  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

11. This factor is not relevant.

    section 60CC(3)(f):           the capacity of:

    (i)each of the child’s parents;  and

    (ii)     any other person (including any grandparent or other relative of the child);

    to provide for the needs of the child, including emotional and intellectual needs;

    section 60CC(3)(i):  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

12. Each of the parties made criticisms of the parental capacity of the other.  The father alleged that the mother frequently hit the children with a wooden spoon or spatula.  He alleged further that she failed to follow medical advice as to how to deal with the ADHD conditions of N and C. 

13. The mother alleged that the father “over controlled” the children.  She did not elaborate on this very general allegation in her affidavit.  She also maintained that she devoted much more time to the care of the children than did the father, due to his work commitments.  She said that her employment took place during school hours or late in the evening.

14. The evidence available does not enable me to make a finding as to whether one party has a superior parenting capacity to the other.  The most that can be said is that it is likely that M and C have spent more time in the care of their mother than their father, due to the parties’ respective work commitments. 

15. The available evidence suggests that each party has an appropriate attitude to the children and the responsibilities and duties of parenthood.  I should make it clear that I draw no assumptions about the parental capacity or attitude of either of the parties on account of their lifestyle. 

    section 60CC(3)(j):           any family violence involving the child or a member of the child’s family;

16. The parties made mutual allegations of violence.  I can do no more than record the competing applications at this stage of the proceedings.

17. The father alleged that the mother kicked and slapped him on many occasions.  Further, he alleged that she scratched him on the face with her fingernails with sufficient force to draw blood.  He also claimed that she ripped chunks out of his hair during arguments.  He conceded that the parties had a volatile relationship and that they struck each other during altercations, on rare occasions.  He admitted that he slapped the mother with an open hand on one occasion, with the result that a decayed tooth was dislodged in her mouth.

18. The mother alleged that the father hit her with his fist three years ago and knocked a tooth out of her mouth.  She alleged, further, that he punched her several times three or four years ago.  She reported this incident to the police but declined to make a statement, thus no action was taken.  She maintained that the father has shown a lot of anger since the death of his father in September 2007.

    section 60CC(3)(k):          any family violence order that applies to the child or a member of the child’s family, if:

    (i)the order is a final order;  or

    (ii)the making of the order was contested by a person;

19. There are no current family violence orders.

    section 60CC(3)(l):           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 child;

20. This factor is not relevant. 

Equal Shared Parental Responsibility

1. As noted, it was agreed that the parties should continue to have equal shared parental responsibility for the children.  Nothing in the evidence persuades me that it is contrary to the children’s best interests for their mother and father to have equal shared parental responsibility.  That leads to a consideration of whether it is in the children’s best interests, and reasonably practicable, that they spend equal time with each of their parents.  This is, in fact, the application of the father.

2. There is obviously a great deal of mistrust between the parties at the present, if their affidavits are any indication.  The mother is not even prepared to disclose her residential address to the father.  This attitude may or may not have a valid basis but, at this stage, I am unable to make that assessment.

3. It seems to me that M and C have a need for stability and routine at this stage in their lives, after what they have been through since the separation of their parents.  For that reason, and because of the lack of cooperation between the parents, I am persuaded that a week-about arrangement would not advance their interests at this point.  The work commitments of each of the parents indicate clearly that the mother has more time available to care for the children than does the father.  I appreciate that his evidence is that his employer is flexible in terms of his working hours.

4. It does seem to me, however, that the two boys should spend substantial and significant time with each of their parents.  I have more confidence that the father’s employment would allow sufficient flexibility to accommodate such an arrangement than is the case with respect to a week-about regime.  I propose to order that M and C live with their father from after school on Thursday to before school on Wednesday in each alternate week.  I will also order that the school holidays are shared equally between the parents. 

5. I do not propose to make an order that N spend defined periods with his mother.  It seems to me that there is a risk that orders for defined time would be counter-productive, in terms of restoring his relationship with his mother.  He is 14 years old and may resent being the subject of orders as to how he spends his time.  Of course, it is essential that the father do everything possible to ensure that N begins to spend regular time with his mother and his sister B.  Likewise, the mother must do everything within her power to ensure that B spends time with her father and brothers in his home.

6. Changeovers which cannot take place at the children’s school will take place at a McDonalds restaurant.  A specific McDonalds restaurant was not nominated, thus it will be necessary for the father and the mother and their solicitors to fix such a place.

I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:     

Date:              25 June 2008