YARWOOD & SHORE
[2012] FMCAfam 1440
•19 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| YARWOOD & SHORE | [2012] FMCAfam 1440 |
| FAMILY LAW – Children – parenting – parenting orders – interim orders – best interests of the children – parental responsibility – equal shared parental responsibility – where equal time between parents not sought – substantial and significant time – where final hearing listed for 3 April 2013 – three children aged 9, 7 and 4 years. FAMILY LAW – Children – passport – Order for delivery of passport – application to place children’s names on Airport Watch List – no necessity for orders to be made. FAMILY LAW – Children – name – Application to change children’s surname – not appropriate to change the surname of child in an interim order. FAMILY LAW – Property – property orders – caveat – proceeds of sale of parties’ former home. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 61DB, 65DAA, 65Y, 67ZD Crimes (Domestic and Personal Violence) Act 2007 (Cth), s.16 |
| Goode v Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 John & Dane [2007] FMCAfam 93 Klein & Wright [2007] FMCAfam 360 |
| Applicant: | MR YARWOOD |
| Respondent: | MS SHORE |
| File Number: | SYC 2033 of 2012 |
| Judgment of: | Scarlett FM |
| Hearing date: | 19 November 2012 |
| Date of Last Submission: | 19 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 19 December 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Armstrong Legal |
| The Respondent: | In person |
ORDERS
UNTIL FURTHER ORDER
The children Z born (omitted) 2003, X born (omitted) 2005 and Y born (omitted) 2008 are to live with the Respondent Mother.
The Applicant and the Respondent are to have equal shared parental responsibility for the children Z, X and Y.
The children are to spend time with the Applicant father as follows:
(a)Each alternate weekend during the school term from immediately after school or preschool as the case may be on Friday until the commencement of school or preschool on the following Tuesday morning;
(b)For one half of all of the school holidays including the Christmas/January school holidays being the first half of the holidays in 2012 and all even numbered years thereafter and the second half of the school holidays in 2013 and all odd numbered years thereafter;
(c)On the weekend that includes Father’s Day in each year from immediately after school or preschool as the case may be on Friday until the commencement of school or preschool on the following Tuesday morning;
(d)On each of the children’s birthdays for a period of not less than two (2) hours at which time all of the children would spend time with the father PROVIDED THAT if any of the children’s birthdays falls on a weekend when the children are spending time with the father in accordance with these Orders then all three of the children will spend time with the mother for a period of not less than two (2) hours on that day;
(e)The father’s time with the children as provided by Order (3)(b) will be suspended 5:00 pm on Christmas Eve 24 December and 2:00 pm Christmas Day 25 December 2012 during which period the children will spend time with the mother.
Changeovers during school holiday periods, on the children’s birthdays and on other days that do not fall on a school day will take place at an agreed approximate midpoint between the homes of the father and the mother and in default of agreement at the McDonalds Family Restaurant in (omitted).
Order (3)(a) is suspended on the weekend that includes Mother’s Day from after school or preschool on Friday until the commencement of school on the following Tuesday.
If the father is required to work away from the Sydney area then the arrangements in Order (3)(a) are to be suspended until his return.
When the children are spending time with the father, he is to deliver them to and collect them from any of their extra-curricular activities or sporting activities as agreed between the parties.
The father is to purchase a suitable change of clothing for the children for such times as they are spending with him and ensure that he returns any clothing to the mother that came with the children.
Each parent is to facilitate telephone communication between the children or any of them and the other parent at all reasonable times.
The father is at liberty to forward letters, emails, mail and other items to the children and the mother is to hand those items to the children unopened.
The father is to make arrangements with the Principal of the school attended by the children or any of them so that he may receive copies of all school reports, circulars, newsletters, information about school photographs and other communications usually provided to parents of children attending that school.
Each parent is at liberty to telephone all or any of the children on at least two (2) occasions each week when the children are on holiday with the other parent.
The parties are to provide to each other a telephone number and address at which the children may be contacted during periods when the children are in the care of the other party during any holiday time no later than seven (7) days prior to the commencement of that time.
If either parent changes his or her address that party must notify the other party two (2) weeks prior to any such move of the new address and landline telephone number.
The mother is to provide the father with the names and addresses of the children’s treating doctors and dentist within seven (7) days.
Each of the parents must ensure that the other parent is notified promptly of any medical emergency or significant illness suffered by the children or any of them including particulars sufficient to enable both parents to be consulted with respect to and be fully informed about the illness or condition and any treatment recommended or provided.
The Applicant and the Respondent are restrained by injunction from criticising or denigrating each other or any member of the other parent’s family in the presence or hearing of all or any of the children or permitting any third party to do so.
Neither party is to drink alcohol to excess at any time when the children are in their care or for twelve (12) hours beforehand.
The Respondent is do all acts and things necessary to withdraw the caveat over the title of the parties’ former home at Property C in the state of New South Wales within seven (7) days.
The net proceeds of sale of the parties’ former home are to be held by the Applicant’s solicitors in a controlled moneys account until the final hearing or further Order of the Court.
IT IS NOTED that publication of this judgment under the pseudonym Yarwood & Shore is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2033 of 2012
| MR YARWOOD |
Applicant
And
| MS SHORE |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the father for interim parenting orders and interim property orders.
The father seeks interim orders relating to the parties’ three children, Z, aged 9, X aged 7 and Y, who is aged 4. The children currently live with their mother, the Respondent, and the father proposes that this arrangement should continue. What the father seeks, in brief, are orders that:
a)the parties should have equal shared parental responsibility for the children;
b)the children should spend time with the father:
i)on alternate weekends from after school and preschool on Friday until the commencement of school or preschool on the following Tuesday;
ii)for half of the school holidays;
iii)on Fathers’ Day; and
iv)for two hours or more on each of the children’s birthdays.
c)He also seeks an order that changeovers in the school holidays should take place at an agreed approximate midpoint between the parties’ current homes or, in default of agreement, at the McDonalds Restaurant in (omitted) at (omitted).
d)Other orders are, on their face, problematic.
e)For example, the father seeks an order:
4.3 That the mother provide the father with suitable clothing for the children for such times as they are spending time with him and that the father return the clothing to the mother when the children are returned to her.
Why, it may be asked, cannot the father provide some clothes for his children? Is that not part of a parent’s duty?
Again, the father seeks an order:
9.4 That, pursuant to s67ZD the mother surrender forthwith to the Registrar of this Court any passport that the mother holds for the children of the relationship or any other passport which would enable the children of the relationship to be removed from the Commonwealth of Australia.
For the Court to make such an order, there would need to be evidence sufficient to satisfy that there is a possibility or threat that the children may be removed from Australia.
Also in this vein, the father seeks orders:
a)restraining the parties from removing the children from Australia and placing their names on the Airport Watch List; and
b)restraining either party from removing the children from the Commonwealth of Australia without the written permission of the other parent (which is already covered by s.65Y of the Family Law Act).
The Applicant seeks orders requiring the Respondent to withdraw a caveat lodged over the title to the parties’ former home and requiring the proceeds of sale to be held in a controlled monies account until the final hearing of the Application.
The Respondent mother does not appear to have filed a Response. She is no longer represented by a solicitor and apparently no longer has access to legal advice.
However, the mother has filed a lengthy affidavit, well in excess of the ten pages of text that the Court directed on 3 September 2012, dated 11 November 2012 in which she sets out her proposals for orders to be made.
Those proposals are:
65) The children are to live with Ms Shore[1] who will have 100% care.
[1] The Respondent’s name is Ms Shore
66) That I be permitted to change the children’s surname to SHORE with Department of Births, Deaths and Marriages. The children will then be known as Z, X, Y.
67) The children are to visit their father, Mr Yarwood, from 9am to 5pm one day a week.
68) Mr Yarwood is to spend every second Saturday and Sunday with the children during the school holidays from 9am to 5pm.
69) Mr Yarwood can attend all school functions and sporting activities.
70) Mr Yarwood is to pay child support and all outstanding child support amounts.
71) Mr Yarwood is to cancel the health care fund for the children. Ms Shore will supply Mr Yarwood with a health care card for the children in case of emergencies.
72) Mr Yarwood is to provide me with a copy of all family photos from his computer for the term of the relationship.
73) Mr Yarwood is not to contact the school or school principal unless in an emergency.
74) Ms Shore is to inform Mr Yarwood of any change in the children’s schooling and residential address or trips interstate or overseas and give details of locations and dates.
75) The children are to spend Father’s Day with Mr Yarwood from 9am to 5pm.
76) The father is to spend time with the children for their birthdays and the father’s birthday on 1st February, 26th February, 29th August and 23rd October from 3:30 until 5pm. If these days fall on school days the father will collect the children from school and return to the closest McDonalds to the Mother.
77) The children are to spend Mother’s Day and 4th April with the mother.
78) The children are to spend Christmas Day 25th December with the mother until 2pm and with the father from 2pm until 7pm.
79) Ms Shore and children are to live their lives without interruption, intrusion from Mr Yarwood.
80) Mr Yarwood is not to leave the country of Australia with the children without the written permission of Ms Shore.
81) Mr Yarwood is to provide details to the mother 1 week prior to the children staying with him if they are to be cared (for) by someone other than himself.
Background
The Applicant’s solicitor, Ms Petkovic, has helpfully provided a Case Outline Document which includes a short history.
The Applicant was born on (omitted) 1970. He is 42 years and 10 months old.
The Respondent was born on (omitted) 1974. She is currently 38 years and 8 months old.
The parties commenced to live together in December 1999 and separated on a final basis about 15 October 2011.
There are three children of the relationship:
a)Z, born (omitted) 2003;
b)X born (omitted) 2005; and
c)Y born (omitted) 2008.
The children remain living with their mother, the Respondent.
The parties have fallen into financial difficulties, which have led to the bank holding security over the title to their home exercising its power of sale. The property has been listed for sale. The Respondent has lodged a caveat over the title.
Both parties are now living elsewhere.
Since the parties separated, there have been informal arrangements between the parties about the father spending time with the children, which included every second weekend from after school on Friday until Sunday afternoon, as well as on Tuesday afternoons.
The Applicant commenced proceedings by filing an Application for parenting and property orders on 10 April 2012. The Application was returnable on 21 May 2102, at which time the parties were directed to attend both:
a)a conciliation conference before a Registrar on 9 July 2012; and
b)a Child Dispute Conference with a Family Consultant.
The Child Dispute Conference took place on 29 June 2012. No agreement was reached. The Family Consultant noted in her Memorandum to the Court that neither parent identified any issues regarding physical violence or safety concerns. However, each party felt that they had experienced forms of psychological abuse during the relationship.
The Family Consultant noted that:
· The mother alleges that the children are not adequately cared for by their father…
· The mother alleges that the father experiences mental health problems exacerbated by alcohol use, involving episodes of anger and verbal abuse, depression, paranoia and a lack of functioning/focus
· The father denies that he has any mental illness. He acknowledges that he has experienced an emotional reaction to the separation and limited time with the children.[2]
[2] Family Consultant Memorandum to Court 29 June 2012 page 2
The Family Consultant also noted various issues relating to the children, including:
· The mother has been the primary carer for the children…
· The parents are in dispute about how much involvement the father had in caring for the children prior to separation
· Both parents allege that the children are being emotionally manipulated by the other
· The parents agree that Y has a close relationship with her father and is happy to spend time with him, that X is content and that Z has displayed some resistance toward spending time with his father.
· The father alleges that the mother is not facilitating his relationship with the children.
· The mother reports concern about the children spending more than two nights in a row with the father and about them spending nights before school with the father.[3]
[3] Ibid
According to the father, the mother unilaterally suspended the existing arrangements after the matter had been mentioned in Court on 16 July 2012.
On 20 August 2012 the Court made interim parenting Orders providing that:
a)The children are to live with the mother;
b)The children are to spend time with the father from 9:00 am to 5:00 pm each Sunday and on 29 August 2012 from 3:30 pm until 6:00 pm;
c)Both parents will be entitled to attend all events involving the children including sporting fixtures and extra curricular activities;
d)Neither party is to denigrate the other in the presence or within the hearing of the children; and
e)Neither party is to be permitted to discuss the proceedings with the children.
Evidence and Submissions
The father has filed a plethora of affidavits in this proceeding up until the time he has obtained legal representation.
The mother relies on her affidavit of 11 November 2012. In her affidavit the mother has raised concerns that the children have suffered psychological harm and been subject to neglect at the hands of the father. She also raises concerns about his ability to manage his anger, especially after he has consumed “excessive amounts of alcohol of a bottle of scotch with coke at a sitting”.[4] She deposed that he spent “minimal time with the children and minimal experience with children or parenting”.[5]
[4] Affidavit of Ms Shore 11.11.2012 at paragraph [9]
[5] Ibid at [21]
The mother gives poignant details of the decline in her financial situation since the relationship ended:
In the nearly 13 months since Mr Yarwood left me I have lost the vehicle I drove, my house/home, my job working for Mr Yarwood, my income from Mr Yarwood’s business, (business omitted), been left with several thousands of dollars debt that I was unaware existed until Mr Yarwood left, have had to see the family pets rehoused due to a move to a smaller property…[6]
[6] Ibid at [30]
The mother complains that the father lacks parenting skills and leaves the children without adequate supervision.
The mother complains that the father has not paid child support. There is an administrative assessment of child support in existence. She has annexed to her affidavit a copy of a Notice of Decision by a Senior Case Officer of the Child Support Agency dated 2 October 2012 varying the administrative assessment of child support payable by the father by increasing the level of child support to be provided by the father. Unfortunately, this is not the proper venue for enforcing payments of child support and the mother will need to take the matter up with the Child Support Registrar.
At paragraph [42] of her affidavit the mother gives reasons why she believes that it would be in the children’s best interests to change their surnames from “Yarwood” to “Shore”. Whatever the merits of this application may be, it is inappropriate to entertain an application to change children’s surnames in an interim hearing.
Changing a child’s name is almost by definition a matter for a final order and this application should properly be left argument at the final hearing.
The father’s solicitor, Ms Petkovic, submitted that the Family Consultant in her Memorandum did not suggest that the children should not spend overnight time with their father. The mother conceded at paragraph [63] of her affidavit that the children have fun with their father and look forward to seeing him each week. However, she still argues that the father’s time with the children should be kept to a minimum.
Ms Petkovic submitted that there is a serious concern about the mother’s ability to promote and encourage the children’s relationship with their father. The evidence does not warrant the children only spending time with their father on a daytime basis only. Alternate weekends with the children would allow the father to be involved in both weekend time and daily routine time.
The mother submitted her main concerns are to do with overnight stays with the children. She stated that the father has had little to do with the care of the children and she has doubts about his capacity to look after them properly for any extended period.
The mother is seeking to have the children spend time with her on Christmas Eve and on Christmas Day until 2:00 pm.
The Relevant Law in Applications for Parenting Orders
Section 60CA of the Family Law Act requires the Court, when deciding whether to make a parenting order, to regard the best interests of the children as the paramount consideration. The Court determines what is in children’s best interests by considering the matters set out in subsections 60CC(2) and (3) of the Act.
The matters in subsection 60CC(2) are the primary considerations and deal with:
a)the benefit to children of having a meaningful relationship with both of their parents; and
b)the need to protect children from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence.
There are additional considerations set out in paragraph (a) to (m) of subsection 60CC(3). Not all of them will be relevant in every case. Frequently, in interim proceedings there is no evidence about particular maters, such as the views of the children concerned (s. 60CC(3)(a)).
The nature of the children’s relationship with each of their parents (paragraph (b) of s.60CC(3)) will usually be very relevant, as will the extent to which each of the parents has taken the opportunity to participate in making decisions about major long-term issues in relation to the children and spend time or communicate with them (paragraph 60CC(3)(c)).
Issues of family violence are of particular significance (s.60CC(3)(j)), as are the question of whether or not a family violence order applies or has applied in the past (s.60CC(3)(k)). An Apprehended Domestic Violence Order under s.16 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) is a family violence order.
Section 61DA of the Act requires the Court, when making a parenting order in relation to a child, to apply a presumption that it is in the child’s best interests for the child’s parents to have equal shared parental responsibility for the child.
The presumption does not apply in cases of abuse of the child or family violence (s.61DA(2)), and it may be rebutted by evidence that it would not be in the child’s best interests to apply the presumption (s.61DA(4)).
The presumption applies when the court is making an interim order unless the Court considers that it would not be appropriate in the circumstances (s.61DA(3)).
However, s.61DB of the Act provides that when a Court is making final orders it must disregard the allocation of parental responsibility made in the interim parenting orders.
If the Court makes an order applying the presumption in s.61DA(1) that it is in the child’s best interests for the child’s parents to have equal shared parental responsibility for the child, the Court must then consider the matters in s.65DAA of the Act. Subsections 65DAA(1) and (2) concern the child spending equal time, or substantial and significant time, with each parent if the Court is satisfied that it would be both in the child’s best interests and reasonably practicable.
All of the matters in the above sections have been considered when making these Orders.
Conclusions
These are interim proceedings. Orders will be made until further order. There is a final hearing listed to commence on Wednesday 3 April 2013, less than four months away.
The limitations placed on the Court in hearings of this nature are well known. As was stated by the Full Court of the Family Court in Goode v Goode[7] at [68]:
…the procedure for making interim parenting orders will continue to be an abridged process, where the scope of the enquiry is “significantly curtailed”. Where the court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.
[7] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
What this means, in effect, is that the Court does not have the opportunity of hearing the parties’ evidence tested by cross-examination, so the Court is unable to hear the parties’ oral evidence or observe the demeanour of a party in the witness box. Where there is affidavit evidence that is contradictory about a factual matter, the Court is not in a position to make a definitive finding of fact.
The best interests of the children must remain the paramount consideration. It is clear that the children have a meaningful relationship with their mother and that they enjoy spending time with their father.
The mother has some fears that the father is not capable of caring for them overnight, but there is no evidence to support that fear. There is no evidence of family violence or abuse.
The children’s views have not been ascertained directly, except that there is evidence from the mother that they enjoy their time with their father. The Family Report will assist when the final hearing takes place.
The nature of the children’s relationship with each parent appears to be positive.
The father is endeavouring to communicate with the children and spend time with them. He complains that the mother has excluded him from decision-making about the children, and the orders sought by the mother in her affidavit tend to support this view.
The mother complains that the father has not fulfilled his obligations to maintain the children and points to his failure to pay child support up to date. This could well be an issue at the final hearing. If it is not already happening, the mother should make arrangements for child support payments to be collected by the Child Support Registrar rather than have the payments made privately. There are advantages to this in that the Child Support Registrar can provide an accurate and independent record of the state of child support payments and can also enforce the payment of arrears.
The father’s request for an order that the mother supply suitable clothes for the children to wear when they spend time with him is telling. It would not do any harm for him to purchase some appropriate clothing for the children. He is their father, after all, and the children might enjoy going shopping with their father to buy useful items of clothing for themselves.
If the children are to spend some overnight time with their father, it may well assist their bonding with him.
There are no allegations of family violence that concern the children, although the mother has complained of harassing and intimidating behaviour by the father[8], who has a somewhat overpowering personality. He has demonstrated in Court before he was legally represented that he is overly loquacious and persistent, which the mother may find rather wearing.
[8] Affidavit of Ms Shore 11.11.2012 at paragraph [55]
There are no current family violence orders. The mother did complain to the police on 16 June 2012 after the father was sending emails and texts to the mother “up to 35 in one day”. She deposed:
I did not seek an AVO as I did not want to escalate the situation or see the children’s father receive a criminal record but his behaviour stopped.[9]
[9] Ibid
This allegation is untested by cross-examination and not admitted by the father but, if he has engaged in that behaviour, he should discuss with his solicitor the undesirability of any such conduct in the future. A court would be likely to take a dim view of repetitive emails and texts of the magnitude claimed by the mother.
The father seeks an order that the parties have equal shared parental responsibility for the children. The mother’s affidavit is silent on that specific point. Under subsection 61DA(3) of the Act:
When the court is making an interim order, the presumption applies unless the court is considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
I am not of the view that it would not be appropriate for the presumption of equal shared parental responsibility to be applied. An order will be made until further order that the parties are to have equal shared parental responsibility for the children.
The question of parental responsibility will be considered afresh at the final hearing in April (s.61DB).
Turning now to the matters, under s.65DAA, I am not satisfied that, because of the poor communication and level of antagonism that presently exists between the parties, it would either be in the best interests of the children for them to spend equal time with each parent. Neither parent seeks that order, in any event.
The mother seeks an order that the time spent by the children with their father would be significantly less than substantial and significant as defined by s.65DAA(3). The father seeks more time that would certainly approach substantial and significant time as it is defined in the Act. At this stage, the interim orders sought by the father, in general terms, would appear to be in the children’s best interests.
Notwithstanding the parties’ limited capacity to communicate with each other and resolve difficulties that might arise in implementing arrangements for the children to spend substantial and significant time with their father, I am not persuaded that it would not be reasonably practicable.
The father seeks an order under s.67ZD of the Act requiring the mother to surrender any passport that she might hold for the children that would enable the children to be removed from Australia.
Section 67ZD provides:
If a court having jurisdiction under this Part considers that there is a possibility or threat that a child may be removed from Australia, it may order the passport of the child and any other person concerned to be delivered up to the court upon such conditions as the court considers appropriate.
The father’s solicitor did not refer the Court to any authority about the application of s.67ZD of the Act. My own researches have discovered just two decisions, both by my late colleague Slack FM in 2007.
In John & Dane[10] his Honour made an order specifically under s.67ZD after hearing evidence that the mother still had relatives in the (country omitted), her country of origin.
[10] [2007] FMCAfam 93
In Klein & Wright[11] his Honour also made an order under s.67ZD after having heard evidence that the mother usually resided either in Italy or the United States and only visited Australia to spend time with the children.
[11] [2007] FMCAfam 360
No such evidence has been brought to the Court’s attention in this matter. There is no evidence of any threat by the mother to remove the children from Australia and not return them. There is no evidence to which the Court’s attention has been drawn that the children currently hold Australian passports or the passports of any other country.
Whilst there is always a theoretical possibility that a party may seek to remove a child permanently from Australia, there would need to be evidence of a real possibility giving rise to a suspicion by a parent that the other parent was a flight risk with the children. There is no such evidence in this case.
The father seeks orders that the children should not be removed from Australia without the written permission of the other parent and their names should be placed on the Airport Watch List until further order. The mother seeks a similar order restraining the father from removing the children from Australia without her written consent.
As before, there is no evidence that either party has any intention to remove the children permanently from Australia, or even temporarily. Section 65Y of the Act already provides:
65Y(1) If a parenting order to which this Subdivision applies is in force, a person who was a party to the proceedings in which the order was made, or a person who is acting on behalf of, or at the request of, a party, must not take or send the child concerned from Australia to a place outside Australia except as permitted by subsection (2).
Penalty: Imprisonment for 3 years.
65Y(2) Subsection (1) does not prohibit taking or sending the child from Australia to a place outside Australia if:
(a) it is done with the consent in writing (authenticated as prescribed) of each person in whose favour the order referred to in subsection (1) was made; or
(b) it is done in accordance with an order of a court made, under this Part or under a law of a State or Territory, at the time, or after, the making of the order referred to in subsection (1).
There is now a parenting order in force. Accordingly, the provisions of s.65Y apply to each of the parties. The orders sought by the parties are unnecessary.
The orders sought in respect of the removal of the caveat and the placing of the proceeds of sale of the parties’ former home are, in my view, clearly necessary.
The father is legally represented but the mother is not. It would be to the benefit of both parties for them to have competent legal representation at the final hearing in April.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 21 January 2013
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