Wills and Morris

FAMILY COURT OF AUSTRALIA

WILLS & MORRIS

[2016] FamCA 599

FAMILY LAW – CHILDREN – Interim – Where interim parenting orders expire on 20 August 2016 – Where the parties agree that they shall have equal shared parental responsibility and the child shall live with the mother when not living with the father – Where the father seeks increased time with the child when the child turns four so that the child spends equal time with each party – Where the mother submits that the child is not developmentally ready for additional overnight time with the father – Where the mother complains about the child’s behaviour upon returning home from time with the father but this is unable to be assessed in the context of an interim hearing – Where the mother’s position in relation to international relocation in ambivalent but there is no prospect in the short term that the child will relocate – Where the co-parenting relationship between the parties is poor – Where it is found not to be in the child’s best interests or reasonably practicable for the child to spend equal time with each parent due to the dysfunction in communication between the parties and the age of the child – Where it is found that the child should spend substantial and significant time with the father – Where the changeover arrangement is not varied – Where the parties are to negotiate in relation to any requests made by the mother to be able to travel internationally with the child with a liberty to restore if they are unable to agree.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Wills

RESPONDENT:

Ms Morris

FILE NUMBER:

SYC

492

2015

DATE DELIVERED:

14 July 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

7 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Godden

SOLICITOR FOR THE APPLICANT:

Humphreys Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Dart

SOLICITOR FOR THE RESPONDENT:

Reid Family Lawyers

Orders

Pending further order

The parties have equal shared parental responsibility for B born … 2013 (“the child”).
The child shall live with his mother when not living with his father.
From 20 August 2016 the child shall spend time with his father as agreed between the parties, but failing agreement, in a two weekly cycle as follows:
3.1.Each alternate week from Friday 4.30pm until Monday 9.30am in one week;
3.2.Each alternate Thursday from 4.30pm to 7pm in the other week.
Upon the child turning four:
4.1.Each alternate week from Thursday 4.30pm until Monday 9.30am in one week;
4.2.Each alternate Thursday from 4.30pm to 7pm in the other week.
The child shall spend time with each parent for one half of each of the school holidays (with holidays in term 4 to be taken in alternate weeks except when the mother is travelling overseas with the child during school holidays pursuant to an agreement between the parties or further court order). If the parties are unable to otherwise agree, the mother shall have the first half of school holidays and the father the second half.
Notwithstanding these orders the child shall spend time with his father:
6.1.On Father’s Day in each year from 9.30am until 5.30pm;
6.2.On the child’s birthday, in the event he is not already spending time with the father on that day, for a period of four hours as agreed between the parties but failing agreement from after school until 7.00pm on a school day and from 2.00pm – 5.00pm on a non-school day;
6.3.From noon each Christmas Day until noon on Boxing Day in odd numbered years and from noon on Christmas Eve until noon on Christmas Day in even numbered years.
Notwithstanding these orders the child shall spend time with his mother:
7.1.On Mother’s Day in each year from 9.30am until 5.30pm;
7.2.On the child’s birthday, in the event he is not already spending time with the mother on that day, for a period of four hours as agreed between the parties but failing agreement from after school until 7.00pm on a school day and from 2.00pm – 5.00pm on a non-school day;
7.3.From noon each Christmas Day until noon on Boxing Day in even numbered years and from noon on Christmas Eve until noon on Christmas Day in odd numbered years.
For the purpose of the child spending time with his father, the father shall collect the child at the commencement of time and shall redeliver the child to the mother’s residential address at the end of the time.
The mother and the father are to negotiate in good faith in relation to requests from time to time by the mother to be able to travel internationally with the child. In the event that the parties, having made a genuine attempt to reach a joint decision in relation to any proposal by the mother for an overseas trip, are unable to reach an agreement, then the mother will have liberty to restore the matter on 14 days’ notice.
Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), 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.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wills & Morris has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 492 of 2015

Mr Wills

Applicant

And

Ms Morris

Respondent

REASONS FOR JUDGMENT

The parties are parents of B (“the child”) born in 2013 (currently aged three years and four months).
On 24 June 2015 interim parenting orders were made with respect to the child. Those orders expire on 20 August 2016.
Currently the child spends time with his father on a two week cycle as follows:
a. In week one:
i.On Tuesday from 4.30pm until 7pm;
ii.On Thursday from 4.30pm until 6pm on Friday.
b. In week two:
i.On Tuesday from 4.30pm until 7pm;
ii.On Saturday from 9am until 5pm on Sunday.
On 23 May 2016, by consent, the parties agreed that the child could travel with both parents internationally for block periods of time; with the mother between 4 June 2016 and 24 June 2016 and with the father between 20 July 2016 and 6 August 2016.
The parties agree on an order, as sought by the father in his interim application, that pending further order, the parties shall have equal shared parental responsibility and that the child will live with his mother when not living with his father.
The parties disagree as to what further interim orders should be made for the child to spend time with his father.
The father’s application is:
[from 20 August 2016]
(b) Thereafter and until [the child] turns 4
a.    Each alternate weekend from Thursday 4.30pm until Monday 9.30am
b.    Each Thursday from 4.30pm until 7.00pm
c.    One half of each school holiday
…
c. Upon [the child] turning 4 [the child] shall spend each alternate week with his father commencing the first Monday after his birthday at 4.30pm or after school when [the child] commences school ending the following Monday morning before school or on a non school day at 9am on the Monday morning.
d.    For the purpose of [the child] spending time with his father the father shall collect [the child] at the commencement of the time and the mother shall collect [the child] from the father at the end of the time.
The father also seeks orders in relation to special days.
In her Response to an Application in a Case filed 20 May 2016 the mother seeks the following:
2. That [the child] … spend time with the father as follows:
a. From 20 August 2016 until [the child] turns four, in a two weekly cycle as follows:
i. In week one:
A. On Tuesday from 4.30pm until 7pm;
B. On Friday from 8.30am until Sunday at 4.30pm;
ii. In week two:
A.On Tuesday from 4.30pm until 7pm; and
B.On Thursday from 4.30pm until 7pm.
b. Thereafter, in a two weekly cycle as follows:
i. In week one:
A. On Tuesday from 4.30pm until 7pm; and
B. On Friday from 8.30am until Sunday at 4.30pm;
ii. In week two:
A.On Tuesday from 4.30pm until 7pm; and
B.On Thursday from 4.30pm until Friday at 7pm.
Ultimately the parties seek the following:
10.1.Until the child turns four, the father seeks four nights per fortnight and one day contact per fortnight. The mother seeks two nights per fortnight with the father and three other day contacts per fortnight.
10.2.After the child turns four, the father seeks seven nights per fortnight. The mother seeks three nights per fortnight and two day contacts per fortnight.
There is also a dispute as to whether or not the mother should share part of the travel involved in the child moving between households.
The mother also presses an application for an order that she be able to travel internationally with the child for the whole of the term 4 2017/18 school holidays.
I note at this point there was some ambivalence in the mother’s position as to what final orders she sought. She originally sought an application for international relocation with the child. At [51] of her affidavit filed 20 May 2016 the mother indicates that she subsequently informed the father’s lawyer via her own lawyer on several occasions, that she intended to abandon her relocation application. She says in that paragraph that she had not yet amended her application for final orders. The mother then goes on to say that because the father had refused her travel in June 2016, she no longer intended to abandon her relocation application as she had reached the view that relocation was the only way that she could maintain a relationship with her family without ongoing constant litigation and obstruction from the father. Since filing that affidavit, an agreement was reached that the mother could travel internationally in June 2016 (which international travel with the child has now taken place). Counsel for the mother was given an opportunity to confirm what the mother’s current position was. Counsel for the mother informed me that the mother does not have a considered position on a final basis and that she is struggling to form a conclusion as to what was in the child’s best interests. I took it from counsel for the mother that the mother’s current formal application presently remains for international relocation but for a number of years, not permanently. It was the mother’s intention to be away for three or four years (perhaps in Europe) after which time she would return to Australia. The mother said her deliberation took into account the ability for the child and herself to enjoy a close relationship with her family (which may not be available if the international travel issue is not resolved), acrimony between the parties and a lack of financial support from the father. Counsel for the mother said if those matters were resolved, then the mother may withdraw her application for a final order for international relocation.
In relation to any final controversy in respect of international relocation on a permanent or semi-permanent basis, it is the mother’s position that if an order was made that the child was not able to leave Australia, she would not go overseas and equally, the father has indicated that if an order was made enabling the child to live outside Australia, he himself would not relocate overseas.
There is no prospect in the short term (until a final hearing) that the child will be permanently living overseas. In the meantime, he will have the opportunity to develop a closer relationship with his father.
The child has been spending overnight time with the father since he was about eight months old.

BACKGROUND

The father was born in 1977.
The mother was born in 1978.
The parties met in 2008/2009 and began a relationship in October 2011. The mother became pregnant to the father in December 2011 but in January 2012 the mother ended her relationship with the father and terminated that pregnancy.
The parties subsequently began dating again in the middle of 2012 and the mother fell pregnant.
In 2013 the child was born.
In May 2013 the mother and the child travelled to Europe to spend time with her family for a period of three weeks.
The parties separated in August 2013.
In September 2013 the parties reached an agreement that the child would spend time with the father on the afternoons and evenings of Tuesday and Thursday of each week and the whole of Saturday.
In November 2013 the parties agreed that the father would see the child on Tuesday afternoons from 4.30pm to 7pm and on alternate Thursdays from 4.30pm to 7pm and on alternate weeks overnight from Friday 4.30pm to Saturday 5pm.
Consequently, from when the child was about eight months old he commenced spending overnight time with his father.
The mother and the child travelled to Europe to attend the mother’s sister’s wedding for a period of three weeks in July/August 2014.
Consent orders were made on 24 June 2015 as set out above.
On 25 June 2015 to 18 July 2015 the mother and child travelled to Europe to spend time with the mother’s family.
The father lives with his fiancé Ms C. Their child D was born in 2015.
In August 2015 the parties were interviewed by a family consultant who produced a child responsive program memorandum dated 19 August 2015.
The father told the family consultant in August 2015 that he would consent to the child travelling to Europe on a half yearly basis if an equivalent reciprocal arrangement were in place whereby the child would spend an equal amount of time with him each year.
Given that the parties have agreed on an order for equal shared parental responsibility, s 65DAA of the Family Law Act 1975 (Cth) (“the Act”) mandates that I must consider whether the child spending equal time with each of his parents would be in his best interests and consider whether or not the child spending equal time with each of his parents is reasonably practicable and if it is, consider whether or not such an order should be made. If I do not make an order for equal time, then I must consider whether or not the child spending substantial and significant time with each of his parents would be in his best interests and whether or not spending substantial and significant time with each of his parents would be reasonably practicable and if it is, consider making such an order.
In considering the child’s best interests, I am guided by the provisions of s 60CC(2) and (3) of the Act.
The family consultant described the child, who was then two and a half, as a happy, energetic and resilient child. There were no concerns about his general development.
The child has enjoyed a significant time with both his parents since his birth and seems to have coped surprisingly well, particularly given the level of conflict between the parents and their very poor level of communication.
There is no doubt that the child currently benefits from having a meaningful relationship with both his parents by whom he is clearly very much loved and cared for.
There is no suggestion that the mother does not acknowledge the significance of the relationship between the child and the father.
There is no significant safety concern raised in respect of the child being in the care of one or other of his parents. There have been no AVO proceedings and although the mother has given evidence that the father has shown some volatility in the past and that she had experienced some stress due to his hostility, those allegations are denied by the father and are unable to be tested in the context of this interim hearing.
When speaking to the family consultant both parents referred to the other as “controlling”. The mother has given evidence in her affidavit as to what she says was the controlling and possessive nature of the father. The mother alleges that the father often denigrated her parenting skills. On the other hand, the father complained that the mother would not permit his friends or family to visit while they were living together.
The mother raised the issue of the father having previously been diagnosed with bipolar disorder but there is no evidence before me that that is so and the father denies any such diagnosis.
Having those matters in mind, no submission was made that there is a need to protect the child from physical or psychological harm or from being subjected or exposed to abuse, neglect or family violence.
The child has a good relationship with both of his parents, the father’s fiancé, his new half-sister who is a couple of years younger than him, and the paternal grandparents.
The mother reported to the family consultant that she had felt pressured into agreeing to overnight time in November 2013 and reported that when the child was one or two years old he had become anxious and distraught after overnight time with the father. Importantly, in August 2015 at the time of the interview with the family consultant, the mother was not reporting that the child was anxious and distraught about overnight time and in fact, both parents reported to the family consultant that the child was now coping well with overnight time.
The family consultant noted that the mother in August 2015 was expressing significant concerns with regard to the father’s request for additional time, stating that she did not feel that the child was developmentally ready to spend successive nights away from her.
At that time this statement by the mother was endorsed by the family consultant who said at the child’s age (then two and a half) he may struggle to be separated from the parent with whom he primarily lives for multiple nights.
The father wants the child to spend more time with him in circumstances where the father submits that the child spends more time at child care, the maternal grandparents and multiple au pairs from time to time than he has spent with the father.
The father complains that after D was placed in the same day care as the child, the mother removed the child from that day care facility without consultation with the father.
In relation to lack of financial support, that arose from the fact that the father has a nil child support assessment based upon the relative incomes of both the parties.
The father submits that whilst the parties only live 10 minutes apart, longer periods of time and fewer changeovers would be less disruptive for the child.
Both parents have the capacity to care for the child although I infer the mother (notwithstanding the third party assistance she receives) is the child’s primary attachment figure.
Whilst the mother complains about the child’s behaviour upon returning from time with his father, I am unable in the context of this interim hearing to assess whether or not those complaints are an accurate recording of the child’s behaviour and secondly, if they are, what is their aetiology. The father says he does not observe any of these reported behaviours in his household.
The parents have very polarised views. The co-parenting relationship between the parties is poor. Their communication at the current time is non-existent. Each parent attributes poor communication to the other. The mother reports that the father ignores her at changeover. The mother complains that the father does not provide her with any information about the child’s day when the child is with him. I have made an order that is aimed at assisting the parties to improve their skills and to be able to deal with one another in a businesslike manner as the child’s parents.

CONCLUSION

The child is three years and four months old. About a year ago a family consultant cautioned against an expansion of overnight time with too rapid a rate given his developmental stage at that time.
The mother is now suggesting that the child should be with his father regularly on two nights a fortnight. The father wants four nights a fortnight moving to seven nights a fortnight by February 2017.
I raised with counsel for the mother during submissions the fact that the mother had on 23 May 2016, consented to an order that the child be with his father from 20 July 2016 to 6 August 2016 (a period of 18 nights). Counsel for the mother responded that the mother considered that that was justifiable on the basis that she consented to that trip because it involved the special occasion of the child travelling to Asia to attend the father’s wedding. Counsel for the mother said that the mother had balanced the benefit to the child of being involved in that special occasion against the negative effect on the child of being away from her for a long period in circumstances where he had not spent more than one night away from her. Counsel for the mother also pointed to what she said would be certain criticism had the mother opposed the child travelling overseas to this significant family event. The submission was made that that should not predicate or set a standard in any way for the normal weekly routine on an ongoing basis. As the lawyer for the father pointed out, the submissions of counsel in relation to the mother consenting to the child being with his father for a block period of 18 nights did not sit easily with what is in [60] of the mother’s affidavit of 20 May 2016, which paragraph concluded “I genuinely believe that [the child] will be distressed to be away from me for two weeks”. It is relatively clear that the mother’s motivation for agreeing to the arrangement was not because she necessarily thought it was in the child’s best interests but rather, she was negotiating to achieve an outcome which would allow her to go to Europe herself for three weeks with the child which result she achieved.
In the context of an interim hearing I will move cautiously. Given the level of communication between the parties which is currently fraught and the child’s age, I find that it is not in the child’s best interest nor is it reasonably practicable for the child to spend equal time with each of his parents.
The child should however spend substantial and significant time with his father and I find that it is in his best interests for that time to be initially three nights a fortnight from 20 August 2016 and to move to four nights a fortnight when he is four years of age. The parties are to share school holiday periods evenly with the child to spend week about in the longer summer school holidays unless there is some other agreement between the parties. I shall make orders in relation to special days.
Currently the father is doing all the transportation associated with the child spending time with him. Whilst that arrangement might be modified at a final hearing, on the limited information I have available to me, the father seems to have a more flexible timetable than the mother does and given that the parties live only 10 minutes apart, I do not intend to interfere with the arrangement that has been in place on an interim basis.
The mother asks that I make an order that she be able to travel internationally for the whole of the Christmas 2017/18 term 4 school holidays.
Overall the father has indicated that he is prepared to consider international travel on the basis that whatever time he might lose with the child is made up to him.
The mother sought an order in the following terms:
5. Thereafter and until [the child] commences primary school, that the mother be permitted to remove [the child] from the Commonwealth of Australia for periods up to six weeks with such periods to include Christmas Day in 2017 (or 2016 if she is not permitted to travel in June 2016) and each alternate year thereafter.
6. From the time [the child] commences primary school, that the mother be permitted to remove [the child] from the Commonwealth of Australia during the time [the child] spends with her in school holidays and for this purpose, [the child] will spend the whole of the June/July school holiday with the mother in 2018 and each alternate year thereafter, and the whole of the Christmas school holidays from 23 December in 2019 and each alternate year thereafter.
7. For the purpose of order 5 the mother shall provide the father with not less than 30 days’ notice of her intention to travel overseas with [the child] with such notice to include details of return airline tickets, accommodation details for the duration of the trip and contact details for [the child] for the duration of the trip.
I am not prepared to make orders in those wide terms.
Given that the father has already agreed for the mother to go overseas with the child on four occasions in a bit over three years, I would anticipate that any reasonable request the mother made to be able to take the child overseas for a holiday would be something to which the father would positively respond and something which the parties could talk about together if in fact their communication is able to improve as a result of them attending a post separation parenting program.
The process that I would hope the parties involve themselves in is the mother putting a reasonable proposal to the father which acknowledges that the father will be missing time with the child whilst the mother is overseas and making some offer to him that would compensate the child for the time that he loses with his father. If however the father in the mother’s view rejects a reasonable proposal, I give the mother liberty on 14 days’ notice to relist the matter for the court to consider whether or not a specific order should be made for a specific overseas trip.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 14 July 2016.

Associate:

Date: 14.7.16

[2016] FamCA 599

14 July 2016

Key Legal Topics

Areas of Law

Family Law