ZABINI & ZABINI
[2009] FMCAfam 963
•15 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ZABINI & ZABINI | [2009] FMCAfam 963 |
| FAMILY LAW – Interim parenting – existing interim orders in place – two children – who the children are to live with – time to be spent with the children and the practicability of such time. |
| Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61C, 61DA, 61DB, 65DAA, 65DAC, & 65DAE |
| Chappell & Chappell [2008] Fam CAFC 143 Goode & Goode [2006] FamCA 1346 R & R: Children’s Wishes (2000) FLC 93-000 |
| Applicant: | MR ZABINI |
| Respondent: | MS ZABINI |
| File Number: | SYC 4364 of 2009 |
| Judgment of: | Kemp FM |
| Hearing date: | 31 August 2009 |
| Date of Last Submission: | 9 September 2009 |
| Delivered at: | Sydney |
| Delivered on: | 15 September 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms De Vere |
| Solicitors for the Applicant: | Watts McCray Lawyers |
| Counsel for the Respondent: | Ms Gillies |
| Solicitors for the Respondent: | Rachel Stubbs & Associates |
| Independent Children’s Lawyer: | Ms O’Donnell of Legal Aid NSW |
ORDERS PENDING FURTHER ORDER:
That the parties have equal shared parental responsibility for the children [X] born in 2000 and [Y] born in 2003 (“the children”).
That the children shall live with the father:
(a)Each alternate week from Thursday from the conclusion of school to 6.00pm Sunday.
(b)From 9.00am until 7.00pm Father’s Day.
(c)For one half of all school holiday periods as agreed, or failing agreement, for the first half of that period in 2009 and the second half of that period in 2010.
(d)During the Christmas holiday period as follows:
(i)From 9.00am Christmas Eve until 9.00am Christmas Day in the year 2010 and each alternate year thereafter.
(ii)From 9.00am Christmas Day until 7.00pm Boxing Day in the year 2009 and each alternate year thereafter.
(iii)For one half of the Christmas holiday period as agreed between the parties and failing agreement, for the first half of the Christmas holiday period which commences in an odd numbered year and the second half of the Christmas holiday period which commences in an even numbered year.
(iv)In years where the children live with the mother for the second half of the school holidays, her school term time with them shall recommence on the second weekend after the school term recommences and in years where the children live with the mother for the first half of the school holidays, her school term time with them shall recommence on the first weekend after the school terms recommences.
(e)At all such reasonable times as may be agreed between the parties.
That the children shall live with the mother at all other times other than when the children live with or spend time with the father.
That the children shall spend time with the mother from 9.00 am until 7.00pm Mother’s Day, notwithstanding the other provisions of these Orders.
That the children communicate with the other parent by telephone as follows:
(a)Each morning between 7.30am and 8.00am; and
(b)Each evening between 6.30pm and 8.00pm.
That each parent shall permit, not prevent or interfere with, and do all things necessary to facilitate the children making telephone calls to and receiving telephone calls from the other parent whilst in the care of the other parent.
That both parties ensure the children have privacy during telephone conversations with the other parent and ensure the telephone is not placed on loud speaker.
That each party notify the other as soon as reasonably practicable of any accident or emergency involving the children, which involves medical treatment or hospitalisation whilst the children are in their respective care.
That both parties ensure the children attend all extra curricular activities in which they are currently enrolled, including training, games and presentations, whilst the children are in their respective care and neither party shall enrol the children in any further extra agreed curricular activity without first obtaining the approval of the other party.
That the parties are restrained from physically chastising the children or allowing any third person to do so.
That the parties are restrained from denigrating the other party, their family or a member of their household in the presence or hearing of the children and shall immediately remove the children from the presence or hearing of any third person who does so.
That the parties are restrained from discussing these proceedings with the children or in their presence or hearing and shall remove them from the presence or hearing of any third person who does so.
That the parties shall advise each other as soon as reasonably practicable of any major medical issues involving the children whilst they are in that party’s care and shall keep the other party informed of any treatment or medication required in relation to the children.
That both parties are at liberty to contact the children’s’ school from time to time, organisations pertaining to sports the children participate in from time to time and health organisations or professionals the children are associated with, for the purposes of obtaining copies of reports, notices or other such communications regarding the child or events in which the children are to be involved and each parent shall be entitled to attend at any such activity to which parents are ordinarily invited to attend.
Each party shall take the children or ensure that the children attend their agreed sports training sessions, weekend games and all social activities in which the children are enrolled during the period that the children are in their respective care.
That the matter be adjourned to 7 December 2009 at 9.30am for mention.
IT IS NOTED that publication of this judgment under the pseudonym Zabini & Zabini is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4364 of 2009
| MR ZABINI |
Applicant
And
| MS ZABINI |
Respondent
REASONS FOR JUDGMENT
Introduction
By application filed 23 July 2009 and as amended by a minute of proposed order, being Exhibit A, the father seeks certain interim parenting orders in respect of the children of the relationship, [X] born in 2000 (“[X]”)(aged 8 years) and [Y] born in 2003 (“[Y]”)(aged 6 years) (“the children”) as follows:-
1. That the parties have the equal shared parental responsibility for the children the children.
2. That the children live with the Father.
3. That the children spend time with the Mother as follows:
3.1 From 6.00pm Friday until 6.00pm the following Friday commencing the second Friday after the making of these Orders;
3.2 From 9.00am until 7.00pm on Mother’s Day each year if the children would not otherwise be spending time with the Mother pursuant to these orders on such day;
3.3 During Christmas holiday period as follows:
3.3.1 From 9.00am Christmas Eve until 9.00am Christmas Day in the year 2009 and each alternate year thereafter;
3.3.2 From 9.00am Christmas Day until 7.00pm Boxing Day in the year 2010 and each alternate year thereafter
3.4 For one half of the Christmas holiday period as agreed between the parties and failing agreement:
3.4.1 For the first half of the Christmas holiday period which commences in an even numbered year and the second half of the Christmas holiday period which commences in an odd numbered year
3.5 At all such reasonable times as may be agreed between the parties.
4. That the Mother’s time with the children pursuant to Order 3 above, shall be suspended from 9.00am until 7.00pm on Father’s Day.
5. That during the school holiday periods ending Terms 1, 2 and 3 the alternate week arrangement shall continue pursuant to Order 3.1 above.
6. That the time the children spend with the Mother pursuant to these orders shall recommence after the Christmas holiday period on the second complete weekend after the commencement of the new school term in the odd numbered years and the first complete weekend after the commencement of the new school term in the even numbered years.
7. That for the purposes of order 3.4 the following will apply:-
7.1 School holiday periods are defined to commence at 5.00 p.m. on the last day of the relevant school term gazetted for New South Wales and to conclude at 5.00 p.m. on the Sunday immediately preceding the commencement of the next school term gazetted for New South Wales.
7.2 Changeover is to occur at 12 noon on the mid-point day between the first and last day of the defined school holiday period.
7.3 In the event that there are two consecutive “mid-point days”, then changeover is to occur at 12 noon on the first of those two “mid-point days”.
8. That the Mother collect the children from McDonalds Family Restaurant [S] at the commencement of the children’s time with the Mother and return the children to McDonalds Family Restaurant [S], at the conclusion of their time with the Mother.
9. That each party inform the other, in writing, of any change to his or her residential address not less than 7 days prior to such change occurring and of any change to his or her contact telephone within 7 days of such change occurring.
10. That both parties be permitted to take the children out of Australia on holidays for no more than a period of 10 days provided that:
10.1 They give to the other parent
10.1.1 a copy of the travel itinerary for the children.
10.1.2 a copy of the return airline ticket for the children.
10.1.3 a telephone number on which the children can be contacted whilst away from Australia.
11. That the children communicate with the other parent by telephone as follows:
11.1 Each morning between the hours of 7.30am and 8.00am; and
11.2 Each evening between the hours of 6.30pm and 7.30pm.
12. That each parent shall permit, not prevent or interfere with, and do all things necessary to facilitate the children making telephone calls to and receiving telephone calls from the other parent whilst in the care of the other parent.
13. That both parties ensure the children have privacy during telephone conversations with the other parent and ensure the telephone is not placed on loud speaker.
14. That each party notify the other as soon as reasonably practicable of any accident or emergency involving the children which involves medical treatment or hospitalisation whilst the children are in their respective care.
15. That the parties be restrained from changing the children’s usual place of residence to any place outside the Sydney Metropolitan area.
16. That both parties ensure the children attend all extra curricula activities in which they are currently enrolled, including training, games and presentations whilst the children are in their respective care and neither party shall enrol the children in any further extra curricula activity without first obtaining the approval of the other parent.
The Respondent mother in her Response filed 14 August 2009, seeks her own interim parenting orders. Those orders were for a continuation of the Orders made on 28 July 2009 (as set out in paragraph 5 below), save for a different proposed order with respect to holiday time, as follows:-
In years where the children live with the mother for the second half of the school holidays, her school term time with them shall recommence on the second weekend after the school term recommences and in years where the children live with the mother for the first half of the school holidays, her school term time with them shall recommence on the first weekend after the school terms recommences.
On 28 July 2009, the Court ordered that an Independent Children’s Lawyer be appointed for the children.
The father was represented by Ms De Vere of Counsel. The mother was represented by Ms Gillies of Counsel. The Independent Children’s Counsel was represented by Ms O’Donnell.
On 28 July 2009, this Court also made the following orders by consent and pending further order:
1. The children live with the mother save and except for the times that they live with the father as provided for herein.
2. That the children shall live with the father:
a. Each alternate week from Thursday from the conclusion of school to 6.00 pm Sunday with the first such occasion to occur on Thursday 30th July 2009
b. From 6pm on the Saturday before Father’s Day to
6.00 pm Father’s Day.
c. One half of the school holiday period that occurs at the conclusion of Term 3 as agreed or failing agreement for the first half of that period.
3. The mother is to take up residence with the children at “the property”, namely Property O, [O] by Friday 31 July, 2009.
4. The father shall ensure that he has vacated the property by Thursday 30 July 2009 and will not reside there.
5. If the father wishes to re-enter the property, he shall provide to the mother’s solicitors with written notice of this intention between 9:00am Monday and 3:00pm Friday. Such notice to include:
a. details of why the father wishes to re-enter the property;
b. time and date that he will be in attendance;
c. the approximate duration he will be in the property.
6. The mother’s solicitors shall advise the father’s solicitors within 24 hours notice as to whether the mother consents to his re-entry and such consent shall not be reasonably withheld.
7. In the event the mother does not consent to the husband’s re-entry he has liberty to apply to the Court on 24 hours notice.
8. In the event that either party is unavailable to personally care for the children as a consequence of work commitments for a period of 4 or more hours that parent is to offer the other parent the 1st opportunity to care for the children before making alternative arrangements for their care.
9. The children are to continue to attend [O] School and the mother shall ensure that they recommence their schooling by Friday 31 July, 2009.
10. For the purposes of facilitating the children living with the father and where such time does not begin or end at the children’s school changeover shall occur at the McDonald’s Family Restaurant at the [S].
11. The parties are restrained from physically chastising the children or allowing any third person to do so.
12. The parties are restrained from denigrating the other parent, their family or a member of their household in the presence or hearing of the children and shall immediately remove the children from the presence or hearing of any third person who does so.
13. The parties are restrained from discussing these proceedings with the children or in their presence or hearing and shall remove them from the presence or hearing of any third person who does so.
14. Within 48 hours of the making of these orders the father shall provide the children with a mobile telephone and charger for the phone. That phone and charger shall pass with the children between the parties.
15. The father shall ensure that the phone maintains sufficient credit for the children to make and receive calls to the parties.
16. Both parties shall have liberal and flexible telephone communication with the children whilst they are in the care of the other party by contacting the children on the mobile telephone outlined in Order 14.
17. The parties shall advise each other as soon as reasonably practicable of any major medical issues involving the child/ children whilst they are in that party’s care and shall keep the other party informed of any treatment or medication required in relation to the children.
18. Both parties are at liberty to contact the children’s school from time to time, organisations pertaining to sports the children participate in from time to time and health organisations or professionals the children are associated with for the purposes of obtaining copies of reports, notices or other such communications regarding the child or events in which the children are to be involved and each parent shall be entitled to attend at any such activity to which parents are ordinarily invited to attend.
19. Each party shall take the children or ensure that the children attend their sports training sessions, weekend games and all social activities in which the children are enrolled during the period that the children are in their respective care.
20. The parties shall keep each other advised, in writing, of their current residential address and current phone numbers and advise the other of any change thereto within 48 hours of such change.
Ms Gillies confirmed that the mother agreed to the father’s proposed orders 12, 13, 14, and 16 (with the addition of the word “agreed” between “curricular” and “activities”).
The parties further agreed that orders 11, 12, 13, 17, 18 and 19 (with the addition of the word “agreed” before the words “sporting activities”) of the orders made on 28 July 2009 would continue. The orders 4, 5, 6, and 7 will also continue.
Ms O’Donnell submitted that as this time, there was no evidence which supported a change from the interim orders made on 28 July 2009.
Principles to be applied and procedure to be followed
The best interests of the child remain the paramount consideration: s.60CA of the Family Law Act 1975 (“the Act”).
The best interests of the child are to be determined by an examination of the factors as set out in s.60CC of the Act. These factors are to be examined, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s.60B of the Act, as follows:
(1) The “objects”… are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The “principles” … are … :
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never been married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including a right to enjoy the culture with other people who share that culture).
The Full Court in Goode & Goode [2006] FamCA 1346 set out a number of procedural steps to be followed on an interim application, namely:
(a) Identifying the competing proposals of the parties;
(b) Identifying the issues in dispute;
(c) Identifying any agreed or uncontested relevant facts;
(d) considering the matters in s.60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s.61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s.65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Ms Gillies confirmed that her client did not seek, at the interim hearing stage, to pursue a relocation case.
Evidence
The father relied on:-
a)His Affidavit sworn on 23 July 2009.
b)His Affidavit sworn on 13 August 2009.
The mother relied on:-
a)Her Affidavit sworn on 11 August 2009.
b)
The Affidavit of Mr O (the maternal grandfather) sworn on
20 August 2009.
The following documents were placed into evidence as follows:
Exhibit No
Document
Date
Tendered by
A
Proposed Minute of Order sought by the father
31 August 2009
Father
1
Letter from Rachel Stubbs & Associates to Watts McCray Lawyers
19 August 2009
Mother
2
Letter from Watts McCray Lawyers to Rachel Stubbs & Associates
21 August 2009
Mother
3
Letter from Rachel Stubbs & Associates to Watts McCray Lawyers
24 August 2009
Mother
The Court, as stated, hears this matter on an interim hearing basis, as the parties have confirmed there is urgency in obtaining relief.
The Court’s determination, therefore, is based only on a study of the documents before it, including affidavits read and the submissions of the parties’ legal representatives. There is no provision at the interim hearing stage for a more extensive hearing where evidence can be tested in cross-examination and where the Court can make findings of fact, after testing credibility and truthfulness.
Proposals
The parties seek the various competing orders set out above. The Independent Children’s Lawyer supported the position of the mother that the current orders made on 28 July 2009 stand, pending final hearing.
Issues
The essential issues in dispute the subject of determination are:
a)who the children are to live with; and
b)time to be spent with the children and the practicability of such time.
Factual Matters
There appear to be a number of relevant uncontested facts, as follows:
a)The father was born in 1967 and is currently 42 years old.
b)The mother was born in 1970 and is currently 39 years old.
c)
The parties commenced cohabitation in April 1999 and married on 24 July 1999. The child, [X], was born in 2000 and is currently 8 years old. The child, [Y], was born in 2003 and is currently
6 years old.
d)The parties separated on 16 July 2009.
e)On 23 July 2009, the father commenced these proceedings
f)The father’s occupation is group manager of a large telecommunications company.
g)The mother’s occupation is social worker.
h)The father lives at Property P with his father, (the paternal grandfather, who is aged 71 years), some two minutes drive from the former matrimonial home at Property O, [O].
i)The father’s brother (Mr A) and his wife (Ms A) live in [O] with their two children, aged 11 and 9, and all are close to the children.
j)The mother lives at the former matrimonial home at Property O, [O].
k)The children currently attend [O] School, where [X] is in year 3 and [Y] is in year 1.
There appear to be a number of disputed facts, as follows:
a)Whether the mother informed the father that she wished to separate on 6 July 2009, when driving him to the airport.
b)What items had been removed by the mother from the former matrimonial home.
c)Whether there are outstanding child support payments.
d)Whether the father sought to contact the mother to see the children between 16 July and 28 July 2009.
e)The father’s involvement in caring for the children.
f)Whether the father forced the mother to have sex.
g)Whether the father has expressed racist sentiments.
h)Whether the father forced the mother to return to work.
i)Whether the father pushed the mother to the floor.
j)Whether the father emotionally or physically abused the children.
k)Whether the father hit the children with a belt, squeezed their heads, flicked them in the face or head, locked them in a garage, shed or car, locked them in their rooms, or called them “stupid”, “lazy” or “fat”.
l)Whether there has been an investigation of the father by DOCS.
m)Whether the father has dealt in drugs.
n)Whether the mother uses anti-depressants or suffers from depression.
o)
Whether the mother unilaterally removed the children from the former matrimonial home on 16 July 2009 and unilaterally enrolled them in [B] public school. The children missing some
18 days of school.
p)Whether the mother signed a lease for a property at [B], being approximately a one hour drive from the former matrimonial home at [O].
q)Whether the mother removed the sum of $212,000.00 from an account, as referred to on her Face Book.
r)Whether the parties engaged the children in their parental discussions.
Presumption of equal shared parental responsibility
Section 61DA(1) of the Act creates a presumption, which the Court must apply before it makes any parenting order in respect of a child (and this is the case whether or not a party has sought a specific order for equal shared parental responsibility). By virtue of this section, it is presumed that it is in the best interests of the child concerned that his or her parents have “equal shared parental responsibility” for the child.
The presumption, however, does not apply if there are reasonable grounds for the Court to believe that the child concerned has been subject to abuse or family violence (s.61DA(2)) or in the case of an interim hearing the court considers it inappropriate (s.61DA(3)) or the presumption may be rebutted by evidence which satisfies the Court that it would not be in the interests of the child for his parents to have such equal, shared parental responsibility (s.61DA(4)) [emphasis added].
The Court notes that this interim decision may be disregarded if a different decision is to be made at the final hearing, pursuant to s.61DB of the Act.
As the Full Court states in Goode & Goode [2006] FamCA 1346, unless displaced by court order, the parties’ parental responsibility may be exercised either jointly or severally. See s.61C of the Act. The effect of an order for equal shared parental responsibility is to require the parents not to reach a joint decision but to consult one another and make a genuine effort to reach agreement about major long-term issues in relation to the children (s.65DAC of the Act). This consultation is not required to be face to face and may still occur in circumstances where the parties are in high conflict provided there is a willingness and an ability to communicate.
The phrase “major long-term issues” is defined in s.4(1) of the Act, as follows:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent. [Original emphasis]
If the issue is not a “major long-term issue”, then consultation is unnecessary and parents may act unilaterally (s.65DAE of the Act).
Some aspects of parental responsibility may be allocated to one parent to exercise, but if this is done, the other aspects of parental responsibility may be exercised jointly or independently, and the way in which it is exercised should be provided for in any orders. See Newlands & Newlands [2007] FamCA 168.
Parental Responsibility
The Court finds that the presumption will apply in this case, as the parties have agreed to that position.
Further, under s.60CC(5) of the Act, the Court is not required to have regard to any or all of the matters set out in sub-section (2) or (3), when the Court is considering whether to make an order with the consent of all of the parties to the proceedings.
Time to spend
The making of an order for equal shared parental responsibility is, however, not of itself determinative of the amount of time that a child is to spend with his parents, but goes to the parent’s decision making responsibilities. It does, however, trigger the operation of s.65DAA (1) of the Act.
If the presumption is applied, certain matters follow by virtue of s.65DAA of the Act and the Court must positively consider whether orders should be made which result in the child concerned spending either “equal time” or “substantial and significant time” or some other time with both his parents.
Substantial and significant time is defined in s.65DAA(3) of the Act as:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) 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.
To determine what time orders should be made, the Court must look to the best interests of the child and whether the actual spending of such time is reasonably practicable.
Primary considerations
In order to determine the child’s best interests, the Court must have regard to the “primary considerations” under s.60CC(2) which are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Court cannot order that the parties and the children have a meaningful relationship. In M & K[2007] FMCAfam 26 [at paragraph 44], Altobelli FM quoted from Professor Parkinson’s article “Decision-making about the best interests of the child: the impact of the two tiers” (2006) 20 AJFL 179 as follows:
… courts cannot by order, create meaningful relationships between parents and children; they can only create or maintain the circumstances that make meaningful relationships possible. In an individual case, the evidence may indicate that the child will not in fact benefit from such a relationship with both parents, or that such a benefit is incapable of realisation in the circumstances of the case.
The considerations listed in s.60CC(2) of the Act do not inevitably outweigh the other considerations, but the Court must give some weight to the term “primary”. See Elspeth & Peter [2006] FamCA 1385.
In this regard:
a)The Court accepts that the children have a meaningful relationship with both parents. The Court notes that the mother had, herself, sought that the father reduce his travel commitments to spend more time with the children. She must have, at that time, considered more time with the father to be of benefit to the children.
b)The primary consideration referred to in s.60CC(2)(b) of the Act is, however, relevant on the facts of this case. The Independent Children’s Lawyer’s submission is that, subject to further investigation, the Orders of 28 July 2009 should continue. In particular, the mother’s allegation concerning reports to DOCS about the father would need to be further addressed.
Additional considerations
The Court must have regard to each of the ‘additional considerations’ under s.60CC(3) of the Act separately, which are set out below:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
In R & R: Children’s Wishes (2000) FLC 93-000, the Full Court of the Family Court of Australia said:
There are many factors that may go to the weight that should be given to the wishes of the children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive syntheses on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests.
Apart from the father’s evidence that [X] did not wish to change schools, there is no evidence before the Court as to the children’s views, upon which any weight could be relevantly given.
(b) the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child);
The mother’s evidence was that she had been the children’s primary carer. She stated that her parents, who lived on a farm, had a close and supportive relationship with the children. She further asserted that the father had tried to unsettle [X], as he was the more sensitive of the two children.
The mother’s evidence was also to the effect that she had made a number of decisions including where to live and where the children would attend school, without, it would appear, any discussion with the father.
The mother submitted that the children could be cared for by her extended family or the paternal extended family, if the parties were otherwise unable to so care for them, due to their work commitments.
The father submitted that the maternal grandparents had allowed the mother’s sister (Ms S) to supervise the children and that she, while intoxicated, was involved in a motor vehicle accident with the children and was charged and gaoled for 11 months. The father submitted that she had a history of drug and alcohol abuse.
The father also submitted that the paternal grandfather (the paternal grandmother having passed away in 2008) had cared for the children in January/March/May of 2009, when the parties travelled to Melbourne.
(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The mother’s evidence was that the father had enrolled the children in sporting commitments without discussion with her. The mother asserted that the father had enrolled the children in indoor soccer, which conflicted with [X]’s saxophone lessons and [Y]’s outdoor soccer. While the mother acknowledged that the children had been involved in multiple activities such as soccer, tennis and music before separation, she asserted that they had not done those activities at the same times as would now occur under the father’s proposal.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
A continuation of the Orders made on 28 July 2009 is not likely to impose any other changes in the children’s circumstances.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
The father’s evidence was that he speaks to the children by telephone twice a day and the mother has supported that telephone time continuing.
There are no other matters of practical difficulty or expense which would otherwise impact on a consideration of the parties’ competing proposals.
(f) the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
The Court accepts that both parents have the relevant capacity to provide for the children.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.
The Court finds that the father’s cultural background is Croatian and he wishes to have the children educated to converse in that language as well as in English and to have the ability to practise some of the Croatian cultural values. The mother’s evidence was that she would encourage this exposure to the Croatian culture.
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
These factors do not apply to these children.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The mother’s removal of the children from their home and schools gives some concern as to her attitude to parental responsibility. However, her reinstatement of the children to their school environment and her return to the former matrimonial home gives the Court some comfort as to her ability to exercise that responsibility going forward.
(j) any family violence involving the child or a member of the child's family;
While the mother asserted that she had been pushed to the floor and that the father had emotionally and/or physically abused the children, these matters are disputed by the father and will require further investigation, in particular, in relation to any reports to DOCS.
(k) any family violence order that applies to the child or a member of the child's family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person;
This factor does not apply to these children.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The Court finds that, as this is an interim hearing, this factor must be assessed in this light.
(m) any other fact or circumstance that the court thinks is relevant
The Court finds that there are no other facts or circumstances relevant to its determination.
Matters in ss.60CC(4) & (4A)
The Court must, without limiting its consideration of the factors in s.60CC(3)(c) and (i) of the Act, consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent (and in the case where the child’s parents have separated, having regard to the events and circumstances since separation). In particular, the Court must consider the matters set out below:
(a) [The extent to which each of the child’s parents] has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child; and
(b) [The extent to which each of the child’s parents] has facilitated, or failed to facilitate, the other parent: (i) participating in making decisions about major long-term issues in relation to the child; and (ii) spending time with the child; and (iii) communicating with the child; and
The father’s evidence was that the mother unilaterally removed the children from their schools and enrolled them in [B] School without prior consultation with him. He asserts that the mother also arranged for a rental property in [B], some 1 hours drive from the former matrimonial home.
The father also asserted that the child [Y] was admitted to hospital without any communication to him of that. The mother said that he was taken to hospital, but not admitted, where he received a bandaid for a small cut.
(c) [The extent to which each of the child’s parents] has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
The father’s evidence was that he had not yet received an assessment from the Child Support Agency, but would meet any assessment when issued.
Reasonably practicability of ‘spending time’
The Court in determining the reasonable practicability of the child spending time with the parents pursuant to s.65DAA(1) of the Act, must have regard to the matters set out in s.65DAA(5) of the Act.
The Court finds that the former matrimonial home where the mother lives, is a two minute drive to the children’s schools and the father also lives approximately a two minute drive away from the former matrimonial home.
There are no other factors which would impact on the reasonable practicability for the children spending time.
Conclusion
Finally, the Court must have regard to all the matters set out in s.60CC, to consider how, together, they should give effect to either or both of the primary considerations in determining the children’s best interests.
The parties have both conceded that the presumption as to equal shared parental responsibility should apply. The Court is of the view that the orders the subject of the father’s proposal, should not be made at this time, for the reasons referred to below.
The mother’s employment, whereby she works three 24 hour shifts per fortnight, usually on a Saturday or Sunday in one week and a Wednesday or Friday in the second week, enables her to care for the children after school. This is of some significance.
The father is in receipt of a high income of some $159,000 per annum, and it would appear, works some 38 hours per week. His employer had provided a letter that the father would be given some accommodation to the effect that the employer would be “entirely flexible with his work commitments”. The letter states that “it will no longer be obligatory for [the father] to travel outside the Sydney area, at any time which would interfere with him being able to care for his children, in an appropriate and responsible manner”. The father’s proposal would see him working from 10.00am to 2.00pm for five days in the week that he had the children. This would be 20 hours work. The father’s position seemed to be that he would then need to make up the shortfall in his time in the subsequent week, when the children were not with him. That would mean that he would then work 56 hours in that week. Ms De Vere submitted that the father could also work additional hours outside the 10.00am to 2.00pm slot from his computer at home in both weeks one and two.
The Court’s concern is that the father’s proposal is predicated on quite a fundamental change to his current working routine. The actual working arrangement flowing from the father’s proposal has not been formally approved by his employer, notwithstanding the expression of accommodation referred to above. The father’s employment letter did acknowledge that the father had previously been required to travel outside Sydney as part of his work obligations. The mother asserted that he travelled extensively interstate and internationally as part of those work commitments.
Further, the father’s proposal sees the children living with him on a week about regime at the paternal grandfather’s home. There is no evidence before the Court as to the willingness of the paternal grandfather to facilitate this. Nor is there any evidence of the children’s relationship with the paternal grandfather, referable to them potentially living in his household and how this would impact on them.
The Court prefers the proposal that sees the children continuing in as stable an environment as possible, including their schooling, pending the final hearing. That was the basis upon which the Court made its views known when it first considered the application by the father for a recovery order. The mother has conceded that position by returning the children to the former matrimonial home (which the father offered as accommodation for her and the children) and to their schools. The children will then continue to have the stability of their existing accommodation.
The Court prefers the father’s proposal relevant to Christmas time. The children have always experienced Christmas with both parents. While the parties have taken the children to the maternal grandparents’ farm at Christmas and this is something that both children enjoy, the mother’s proposal is for that to occur in 2009, but without the father. There is no evidence before the Court as to the children’s position in relation to that proposal. The Court is of the view that it is more important for both parties to be able to spend some of the Christmas time in 2009 with the children, given that this will be the first year that the children will celebrate Christmas when the parties have been separated.
The Court would, however, be minded to provide for some mid-week overnight time for the father in the week when he is not exercising time pursuant to the current orders, if that proposal was supported by the Independent Children’s Lawyer after appropriate investigations have been carried out. The Court will give the Independent Children’s Lawyer leave to apply with respect to this issue, on 3 days notice.
The Court is of the view that the proposed order sought by the respondent mother set out in paragraph 2 above, is of benefit in defining the commencement and conclusion of the times referred to in the school holiday periods.
Parenting orders should be accompanied by as little ambiguity as practicable (see Chappell & Chappell [2008] Fam CAFC 143; Newlands & Newlands [2007] FamCA 168).
The Court is satisfied, on balance, that its proposed orders are in the children’s best interests and, accordingly, will so order.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Kemp FM
Deputy Associate: Caroline Nolan
Date: 15 September 2009
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