Williams and Robb

[2009] FamCA 316

FAMILY COURT OF AUSTRALIA

WILLIAMS & ROBB [2009] FamCA 316

FAMILY LAW – CHILDREN – With whom a child spends time – time spent with the father – where it is agreed that the child should spend substantial and significant time with the father – obliged to consider additional time being spent with the father – where child has indicated she does not wish to spend additional time with the father but family assessment report indicates it is in the child’s best interests to do so – in child’s best interests to spend additional time as sought by the father – where mother seeks changeover to occur at neutral venue – where there is no evidence of violence or unpleasant scenes at changeover – in child’s best interests to spend as little time as possible in the changeover process in a public venue – handovers to occur at the parties’ homes

Family Law Act 1975 (Cth)
APPLICANT:	Mr Williams

RESPONDENT: Ms Robb

FILE NUMBER: ADC 835 of 2007

DATE DELIVERED: 23 April 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE REASONS OF: BURR J

HEARING DATE: 22 September 2008,
22 and 23 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR BERMAN

SOLICITOR FOR THE APPLICANT: CARDONE & ASSOCIATES

COUNSEL FOR THE RESPONDENT: MR NOBLE

SOLICITOR FOR THE RESPONDENT: ANGELA FERDINANDY

Orders

1. That the husband spend time with the child each alternate weekend from after school on Friday to 8.00 pm on Sunday, or if Monday is a public holiday or pupil free day, to 8.00 pm on Monday, commencing on 1 May 2009 and subject to the earlier agreed provisions that times spent by the child with the husband are to be suspended during school holiday periods.

2. That all changeovers at the commencement of the children’s time with the husband shall take place at the children’s school on school days or at the wife’s home on other occasions unless otherwise agreed.

3. That all changeovers at the conclusion of the children’s time with the husband take place at the children’s school on school days or either at the foot of the building in which the husband’s apartment at G is located or at the husband’s residence at M, with the husband to advise the wife of the changeover location prior to the commencement of the children’s time with him on each occasion.

4. That the husband do give the wife at least 28 days notice of any known inability to have the children at a scheduled time and if in any other event less than 28 days, then as soon as possible.

5. That the husband use his best endeavours to reasonably ensure the child’s attendance at all of her extra curricular activities as accord with the child’s wishes and pre-planned commitments during school term time and otherwise during school holiday time when not in conflict with holidays planned away from the husband’s premises at M or G.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 835  of 2007

MR WILLIAMS

Applicant

And

MS ROBB

Respondent

REASONS FOR JUDGMENT

1. At the commencement of the trial proceedings before me the parties were in dispute in relation to all issues of property settlement, child support and matters pertaining to their children, but more specifically their daughter born in January 1997.  Thus the child is some 12 years of age.  To their great credit though the parties worked diligently over the last day and a half to resolve all issues of property settlement and child support and I was able to make Orders by consent in terms of Minutes that were produced for my consideration. 

2. In making those Orders by consent on the issues of property settlement, I am satisfied that it represents a just and equitable outcome between the parties.  I do so with the familiarity with the matter which I have acquired over many months since the matter was first assigned to my docket.  I have read the affidavit materials of the parties, the questionnaires previously filed by them and the financial statements filed.  I have had the further benefit of the Outline of Case documents produced by Counsel prior to the commencement of the trial proceedings.  I am further able to be satisfied that the property settlement Orders represent a just and equitable outcome, having regard to the experience and expertise of the parties’ legal representatives, both as to Counsel and instructing solicitors.  I am informed that the settlement represents a 60 / 40 distribution of the net asset pool between the parties in favour of the wife and from my reading of the materials and a preliminary assessment that I made of the matter, that range well and truly fits within what I deem to be a just and equitable outcome.  On that basis, I was quite content to make those Orders by consent.

3. Also the parties were able to agree the most critically important issues in relation to their children and again I was able to make Orders by consent, satisfied as I was from my reading of the affidavit materials and the two reports of Ms H dated 15 March 2008 and 11 March 2009 that those arrangements represented the children’s best interests as far as they went.  That then left a number of quite discrete issues for me to determine.

4. The matters that were before me in relation to those discrete issues were contained in the affidavits filed by the parties.  I also had the benefit of receiving some brief oral evidence from each of them and heard each of them cross-examined on those topics.

5. Any Orders that I am to make in relation to the children, and they are specifically as to these issues in relation to the parties’ daughter, must be based upon the matters contained in Part VII of the Family Law Act, but specifically a number of quite explicit provisions.  The principal among them of course is Section 60CA of the Act which requires me to consider the child’s best interests as the paramount consideration in making my determination.  From Section 60CA I am guided to Section 60CC of the Act which, in turn, is divided into two separate areas of consideration requiring the Court’s treatment and they are termed as ‘primary considerations” and “additional considerations”. 

6. In my view, given the limited area of dispute between the parties which arises from these very specific issues yet to be determined, it is not necessary for me to deal with each of the provisions contained in Section 60CC individually and in detail.  I have though had regard to each of those provisions when making my determination and am conscious of those provisions which bear greater relevance to the decision I need to make than others.

7. Dealing now with the specific areas which remain in dispute, the first of them is as to whether or not the husband’s agreed time to be spent with the child each alternate weekend is to be extended to include pupil free days when such days fall on the Monday immediately following his periods of time within those alternate weekends.  As I said, each of the parties gave their evidence on that topic.  The husband’s position, I think, can be expressed quite simply which was that he would like to spend as much time as is possible with his daughter and such pupil free days provide him with rare and only occasional opportunities to do so.  The evidence is to the effect that there are unlikely to be more than two to three pupil free days in any academic year.  The wife is opposed to that on the basis that it removes from the child an opportunity to make her own determination about how she might want to spend those days free of school responsibilities.  It specifically gives her an opportunity to spend time with friends.

8. However, in my view it is appropriate to extend the husband’s time to include those pupil free days, not just on the basis that I formed the view that it represents the child’s best interests to do so, but because in my view, the legislation obliges me to consider such additional time being spent with the husband.  That arises from the parties’ agreement contained in paragraph 2 of the Orders that I have made by consent that each of them is to have joint and equal parental responsibility for the child.  Given their agreement to that position, I am obliged by Section 65DAA of the Act to consider whether it is then appropriate to make Orders that the child spend equal time with each of the parents or if not, then substantial and significant time.  By their agreement, the parties have acknowledged that it would not represent the child’s best interests for her to spend equal time with her parents but their general agreement is to the effect that she should spend substantial and significant time with the husband.  In my view, those pupil free days afford an opportunity in a very limited way to increase that substantial and significant time that the husband is able to spend with her.  I therefore make an Order in terms of paragraph 7.1 of the Minutes which, to avoid any dispute, is:-

   “Each alternate weekend from after school on Friday to 8.00 pm on Sunday, or if Monday is a public holiday or pupil free day, to 8.00 pm on Monday, commencing on 1 May 2009”.

9. The next matter which was in dispute between the parties was as to the husband’s request that he be able to spend time with the child “each Wednesday night from after school until the commencement of school on Thursday morning.”  That wording emerges from paragraph 7.2 of the Minutes of Order that were handed to me.  Again though, to their credit, the parties during their evidence before me agreed a position in relation to that.  I now make the following Orders, by consent:-

   “That [the child] spend each alternate Wednesday night from after school until the commencement of school on the immediately following Thursday with the husband, commencing on Wednesday 20 May 2009 (subject to the earlier agreed provisions that times spent by the child with the husband are to be suspended during school holiday periods) until the conclusion of Term 3.

   That at the conclusion of Term 3, or as near thereto as is appropriate, the parties engage Ms [H] and share equally the costs of that engagement to further interview [the child] and determine whether or not:-

   (a)[the child] wishes the alternate Wednesday night arrangement to continue;

   (b)[the child] wishes the alternate Wednesday night arrangement to advance to each Wednesday night; or

   (c)[the child] wishes to terminate the arrangement for Wednesday nights completely

   and that Ms [H] convey her assessment and report on [the child’s] views and wishes to the parties and that [the child’s] views and wishes in that respect as reported to them by Ms [H] be given effect.”

10. The next matter which emerged was paragraph 7.15 of the Minutes tendered to me, but again during the course of evidence given by the parties they agreed mutually to the change suggested by me which was to the effect that 21 days notice was the appropriate notice to be given in relation to intended travel times.

11. I turn now to paragraph 7.17 of the tendered Minutes of Order.  The dispute here is as to where changeovers ought to occur at the commencement of the children’s time with the husband, when such changeover at the commencement cannot occur at the children’s school.  It is the wife’s position that she wishes all handovers which do not take place at the school to be effected at a neutral venue and she has suggested the Westfield Shopping Centre.  It is the husband’s position that he would collect the child from the wife’s premises on those occasions.

12. In my view, and as will emerge from the additional reasons that I give shortly, it represents the child’s best interests to spend as little time as possible in the changeover process and in my view, that would include any additional time that she is to spend in motor vehicles or finding suitable parking spots and making other practical and physical arrangements to effect a changeover at a public place.  No matters were put in evidence before me as to any fear that either party may have of the other creating violent or unpleasant scenes and on that basis I think the focus ought to be on what causes the least inconvenience for the child.  I am conscious in making that decision that I have made Orders ultimately again with the parties’ agreement, that she will be spending alternate Wednesday nights with her father for two terms in circumstances where she clearly indicated to Ms H that she did not want to do so.  I did so, and clearly the parties accepted that it would be appropriate to make that Order by consent, nonetheless on the basis of Ms H’s expert view that such an arrangement, whilst contrary to the child’s views, would better represent her interests.  Thus I make an Order in terms of paragraph 7.17 of the Minutes tendered, namely:-

    “That all changeovers at the commencement of the children’s time with the husband shall take place at the children’s school on school days or at the wife’s home on other occasions unless otherwise agreed.”

13. I now turn to paragraph 7.18.  This again is as to an issue of changeover but at the conclusion of the children’s time spent with the husband, rather than at the commencement thereof.  I note the wife’s concerns about the occasional unpleasantness that she has encountered in the past and fears encountering again in collecting the child from the husband’s premises at G.  I do not treat those concerns lightly but again, as the legislation indicates, it is not an issue so much about the parents as it is about the children.  Again, because I believe it is better for the child to spend as little time in a transit situation or in an exchange situation in a public venue, that the husband’s proposal is the more appropriate.  I have regard too that there are all sorts of other issues that may impact upon the child’s comfort and convenience on those occasions, not the least of which might be weather as the seasons alter from extremely hot to cold and wet.  It is, in my view, more appropriate that she be exposed less to those elements by an exchange at the husband’s premises than would occasionally be the case at a public venue such as the Westfield Shopping Centre.  As I said, I did not and do not treat the wife’s concerns lightly and I record in these reasons that I would have an absolute expectation of the husband that he will have his mobile telephone turned on at the appropriate times at the conclusion of those times that he spends with the children and that he will diligently and strictly abide by the intent of the Orders and have the children available at the appointed hour for an exchange in the least inconvenient circumstances for the wife.   I therefore make an Order in terms of paragraph 7.18 of the tendered Minutes:-

    “That all changeovers at the conclusion of the children’s time with the husband take place at the children’s school on school days or either at the foot of the building in which the husband’s apartment at [G] is located or at the husband’s residence at [M] with the husband to advise the wife of the changeover location prior to the commencement of the children’s time with him on each occasion.”

    In doing so, I am mindful that there are occasions when that handover will occur at M but I am not satisfied on the evidence of the wife that there is sufficient reason for that not to be a point of changeover, again having in mind the child’s best interests.

14. The next issue between the parties was as to that raised in paragraph 7.19 of the Minutes of Order which is as to the amount of notice that the husband ought to give to the wife in the event of any known inability to have the children at the scheduled time.  The outcome of the cross-examination of the wife was to the effect that she understood that there would be occasions when the husband could not give 28 days notice as was her preferred option and in those circumstances, indicated her willingness to accept shorter notice by the preferred communication of email.  I invited Counsel to try and find the right words for me and the words “and if in any other event less than 28 days, as soon as possible” can now be added to the end of paragraph 7.19.  Accordingly, by consent, paragraph 7.19 will read:-

    “That the husband do give the wife at least 28 days notice of any known inability to have the children at a scheduled time and if in any other event less than 28 days, as soon as possible.” 

15. That leaves me now with paragraph 7.23.  In the Minutes the husband has sought an order “That if the wife is unable to care for the children for any period overnight (or in excess of 24 hours), the wife do give the husband the first option of caring for the children during that time.”  The husband, in his evidence, acknowledged that there would be occasions when it would not be appropriate if those circumstances arose that the child would spend that time with him.  He indicated in his evidence that he would have regard to the child’s views in that regard and if there was some other commitment or there was some other option that he acknowledged was a more appropriate way for the child to spend her time, he would not stand in her way.  I note that he does not seek it as an imperative but simply as an option.  The wife’s opposition to that position was based on a number of factors but I certainly have regard to the fact that the child is comfortable in her own home, enjoys being in her own home certainly midweek, and appropriate arrangements have, in the past, been put in place for the child when those circumstances arise which I note from the evidence is rarely.  Again I think I am compelled to an obvious outcome by the provisions of Section 65DAA of the Act which is that where it does represent the child’s best interests, to at all times expand the opportunities for the husband to spend substantial and significant time with her.  In those circumstances I make an Order in terms of paragraph 7.23 of the Minutes.

16. Through her Counsel the wife indicated that she was seeking an order that the child not be left unsupervised in public at times when she is with the husband.  I understand her concerns.  Those concerns were acknowledged by the husband in his evidence.  Those concerns obviously are not confined to these matters but include concerns any parent would have about a young daughter and indeed any child, being left unattended and unsupervised in a public place.  The child is but 12 years of age and there would be occasions when regrettably she might be exposed to a variety of risks.  Again there is acknowledgment though by the parties in agreeing that they are to have joint and equal shared parental responsibility that the other parent in almost all circumstances is able to make appropriate choices and exercise appropriate judgment when the children are in their care.  I accept the intimation of the husband that he will exercise appropriate caring discretion and judgment in those circumstances.  I indicated to Counsel that there might be some specific issues of interpretation that might arise from an order as general as the one sought by the wife.

17. I acknowledge now, in making the Order I am about to make, that I may well have created difficulties in that same regard rather than have solved them.  However a fundamental principle in my view is that the child’s wishes ought to be respected.  Currently her wishes are that she be allowed to engage at every conceivable opportunity in her ballet, her voice lessons and her swimming lessons.  It is appropriate too to acknowledge that those areas of interest and extra-curricular activity will change over time.  It is highly probable that as she grows into teenage years and into adulthood and womanhood that she will develop a number of other, and at times, competing interests.   In trying to balance those two areas and those two issues, it is my view that the child’s best interests in that regard would be represented by the following order:-

    “That the husband use his best endeavours to reasonably ensure [the child’s] attendance at all of her extra curricular activities as accord with [the child’s] wishes and pre-planned commitments during school term time and otherwise during school holiday time when not in conflict with holidays planned away from the husband’s premises at [M] or [G].”

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr

Associate: 

Date:  23 April 2009