Westbrook and Westbrook (No. 2)

[2007] FamCA 1732

FAMILY COURT OF AUSTRALIA

WESTBROOK & WESTBROOK (NO. 2) [2007] FamCA 1732

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Interim orders made for the children to live with the mother and spend 5 nights per fortnight with the father

Family Law Act 1975 (Cth)

Goode & Goode [2006] FamCA 1346

APPLICANT: Ms Westbrook

RESPONDENT: Mr Westbrook

FILE NUMBER: SYF 3953 of 2006

DATE DELIVERED: 2 July 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Mushin J

HEARING DATE: 2 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kearney

SOLICITOR FOR THE APPLICANT: Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT: Mr Batey

SOLICITOR FOR THE RESPONDENT: Slade Manwaring

Orders

1. That the applications for review of the orders of Johnston JR made on 18 May 2007, under Pt VII of the Family Law Act 1975 (Cth), be dismissed.

2. That all other applications for the review of those orders made on 18 May 2007 be adjourned to 13 July 2007 with an estimated duration of half to one day.

3. That until further order, the husband and the wife share the parental responsibility of making all major long term decisions with respect to the children, B born on … March 2001, and S born on … November 2003.

4. That until further order, the said children live with the wife.

5. That until further order the said children spend time and communicate with the husband as follows:

   (a)       During school term: 

   (i)from after school and day care on Friday to 6 pm on Sunday of each alternate weekend commencing 6 July 2007; and

   (ii)from midday on Sunday to commencement of school and day care on Wednesday in each other week.

   (b)       In accordance with 3(b) - - -

6. The minutes of orders filed this day remain on the Court file.

7. I order in accordance with paragraphs 1, 2, 3, 11, 12, 13 and 14 of the said minutes. 

8. General liberty be reserved to both parties to apply.

9. It is certified that, pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel

IT IS ORDERED BY CONSENT

1. That these orders be engrossed on the provisional electronic copy in the appropriate form by the solicitors for the wife in seven days.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3953 of 2006

MS WESTBROOK  

Applicant

And

MR WESTBROOK  

Respondent

REASONS FOR JUDGMENT

1. These proceedings constitute a review of orders made by Johnson JR on 18 May 2007 in parenting proceedings.  The husband is aged 49 years.  The wife is aged 36 years.  The parties commenced living together in 1997, married in July 1999 and separated recently, although there appears to be some small difference between them which, for present purposes does not matter.  They have two children by their relationship.  B who was born in March 2001, is just over six years, and S who was born in November 2003,  is aged three and a half years.  Following the parties' separation, the children have remained living in the primary care of the wife with an arrangement between the parties for them to spend some, although in terms of the proposals presently before the Court relatively little, time with the husband. 

2. The parties commenced proceedings in this Court in 2006 but the current proceedings commenced in May of this year.  By application on form 2, the wife sought certain financial orders together with an order that the children live in her primary care. She proposed that the children spend time with the husband basically on alternate weekends from 10 am on Saturday, or the conclusion of B's soccer match on Saturday whichever is the later, to 6 pm Saturday and 10 am Sunday to 6 pm Sunday.  In addition she sought that the children spend each other weekend in the care of the husband from after school to 6 pm on Friday.  There were other orders sought with regard to Father's Day, school holidays and the like which, for present purposes, do not concern me. 

3. By way of response filed on 17 May 2007 the husband sought other orders of a financial nature, together with an order that the children live with him each Monday and Wednesday from after school until the commencement of school the following day, and from 9 am on Saturday until 9 am on Sunday of each week with him to collect and return the children. The parties live geographically close to each other and travelling, for present purposes, is not an issue.

4. The proceedings came before Johnston JR on 18 May.  The learned judicial registrar ordered that the children spend time with the husband from Saturday until Wednesday of each alternate week, and Thursday until Saturday on each other week(?).  For the purpose of referring to the various proposals, it is convenient to refer to nights spent with each of the parties on a fortnightly basis.  In support of their respective applications, the parties have sworn and filed a plethora of material.  In my view, if not the majority certainly a significant proportion of that material is at least unhelpful and probably irrelevant to matters pertaining to interim parenting orders, some of it may be relevant to the final orders but I am critical of the detail to which a lot of the affidavit material descends.

5. Following the orders of the judicial registrar, the wife filed an application to review those orders and it is that application to review which is the subject of these reasons for judgment in the parenting aspect of these applications. The applications have been heard by way of submission from counsel. No cross‑examination has been sought or required.  I had ventured the view that it may be necessary to hear cross-examination on a very narrow area, but as the submissions(?) have transpired I found that unnecessary.  Accordingly, it is neither possible nor appropriate to make any findings on disputed facts. 

6. The areas of dispute between the parties are vast and reflect what I infer from all of the affidavit material a very poor relationship between the parties which, in my view, is in itself not in the best interests of the children.  I am not able to attribute any responsibility for that but simply comment on that unsatisfactory relationship.  On the basis of the material, I am satisfied that prior to the parties' separation they lived what might be referred to as a traditional relationship in which the husband was the primary breadwinner and the wife was the primary homemaker and parent.

7. It would appear on the basis of the material that the husband was involved in assisting the wife in the homemaking and parenting but no argument has been put to suggest that prior to the separation the proportions were other than in favour of the wife as far as parenting and homemaking are concerned.  Since the separation, those roles have been essentially maintained.  The arrangements between the parties have seen the children spend the greater part of their time in the care of the wife with time spent for the husband.  However, to the extent that it might be suggested that any proportion of time spent since the separation may be an indicator to what should happen in the future, while it is clearly a factor to be taken into account, it is not in any way decisive.  And in saying that I do not suggest that there is any submission that it should be seen as being decisive.

8. The parties' proposals are, first, on the part of the wife as the applicant, both for the review and on the substantive applications, is that the children should spend every alternate weekend between either 10 am or the conclusion of soccer on Saturday to 6 pm on Sunday with the husband, and on the other weekends from after school on Friday until Sunday evening.  That is a division of 11 nights in the fortnight to the wife and three to the husband.  The husband's position on the review is that it is in the best interests of the children that the orders of the judicial registrar should essentially be maintained. 

9. There is a concession on behalf of the husband that the proposal, put by him in his form 2A referred to earlier, involves what I would paraphrase as being too much coming and going on the part of the children, a matter which in my view is a relevant consideration, particularly given their young age.  The parties are also agreed on a number of ancillary matters to do with the children and they do not need to be the subject of my decision-making.  Latterly, in his response, counsel for the wife submitted that in the event that I were to decide against him on the primary proposal to which I have referred, put on behalf of the wife, that a proposal of Monday to Wednesday and alternate weekends and the other doing a 10/4 proportion of nights would be in the best interests of the children.

10. In considering this application I must regard the best interests of the children as being the paramount consideration.  "Paramount" means most important; it does not mean "only" or "sole".  I must have regard to the various objects and principles contained in s 60B of the Act which have always emphasised the role of both parents and, in particular, the rights of the children to know and be brought up by, and spend time with, both their parents, subject to their best interests, but it might be said that the amendments of last year to those objects and principles could be seen to give even greater emphasis to those rights.  However, I emphasise that at all times they are subject to the best interests.

11. The Full Court of this Court recently decided the matter of Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 Fam LR 422 which emphasised the requirement in interim parenting orders to follow the structure of the amended Act in interim proceedings. The first provision relates to parental responsibility and establishes a presumption that subject to certain matters the parties will share the parental responsibility of their children. I am very pleased to record that, first, no submission has been made that that presumption should be rebutted, in particular there is no issue of violence or abuse in these proceedings and it is not seen to be otherwise contrary to the best interests of the children or either of them that the presumption apply.

12. Accordingly, with regard to major issues, or decision-making with regard to major issues, I find that it is in the best interests of the children that there be an interim order for shared parental responsibility.  Having made that decision, I am then required to consider the question of whether it is in the best interests of the children that their time should be equally shared between their parents.  In the first place neither party makes a submission that that should apply; secondly, in my view, for similar reasons to that which I will find shortly, it is not in their best interests that there should be such a sharing.  Having then decided against an equal sharing of time between the parties, I am then required to consider the question of whether the children should spend substantial and significant time with either party, and that of course involves a finding as to the party with whom the children should primarily live. 

13. On the basis of the proposals put to the Court there is a concession made on behalf of the husband that the children should live in the primary care of the wife.  In my view, that is an appropriate concession. The wife has been their primary carer and that is conceded.  In addition to that, they are very young and disturbing that primary care, in my view, should not be done at this stage of the proceedings if at all.  I note that these proceedings have been conducted on the basis of no independent children's lawyer and no family report, and accordingly I can only decide them on basic principles and experience of proceedings of this type. 

14. In a sense as between the parties, the primary proposal of the wife is for three nights out of 14 and that of the husband is for six nights out of 14.  While latterly the wife took a second position, I acknowledge and concede readily that that was only a second position of four nights out of 14 to the husband.  It is part of the concept of substantial and significant time that the children should spend time with the parent in a decision of substantial and significant time to include days that fall on weekends and holidays and days that do not fall on weekends or holidays, that the time a child spends with a parent allows a parent to be involved in the child's daily routine and occasions and events that are of particular significance, and the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

15. The older child who, as I have said, is aged a little over six years attends school.  The younger child attends day care on three days per week, Monday, Wednesday and Friday.  In my view, the primary proposal of the wife does not provide for substantial and significant time as intended by the legislature.  Counsel for the wife made, what I regard as being, a bold submission that non‑weekend time might include the couple of hours on Friday afternoon from the end of school until the beginning of the weekend.  I do not seek to enhance that any further.

16. I think that the secondary proposal of the wife certainly answers that problem in that a period of 48 hours from Monday to Wednesday does enable, with the rest of that proposal, both weekend and weekday time enabling the husband to participate in the daily routing of each of the children both as to school and day care.  I note the wife's acceptance through counsel of the husband's assurance that he is available to care at those times and that he is able to adjust his occupation to accommodate that necessity.

17. In my view, the six days proposed by the husband does not sufficiently acknowledge and give effect to the primacy of the wife's caring and her primary homemaking and parenting throughout the lives of the children.  Looking at the various additional factors which it is necessary to consider, in my view one must be careful, at least on an interim basis, to not change that primary caring unduly at this stage until one has further evidence with regard to the bonding and the ability of the parties with regard to parenting and the ability of the children to cope with those factors.  The concession by the wife would suggest that the husband is well able to care for the children for significant periods of time and I find the balance between the desirability of maintaining the primary care as against the clear intention of the Act to involve, by way of a definition of substantial and significant time, the other parent in a significant degree of caring, the balance of these applications.

18. It was submitted to me by counsel for the wife, in my view correctly, that it is not appropriate to split the difference and I regarded the difference, until a further concession was made, between three days and six days as being appropriately five days.  The fact that the three became four has not in fact changed my position.  In my view, the balance of the factors to which I have referred are best served on an interim basis by a regime, pursuant to which every alternate weekend from after school on Friday until 6 pm on Sunday, and on the other weekend from midday on Sunday to the commencement of school and childcare on Wednesday is the appropriate decision in the best interests of the children and I will order accordingly.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate

Date:  May 2009