ZEMA & KRISTO

[2015] FamCA 1109

FAMILY COURT OF AUSTRALIA

ZEMA & KRISTO [2015] FamCA 1109

FAMILY LAW – CHILDREN – interim orders – where the husband seeks increased time with the child – where the mother opposes an increase in time – where there is a family report – where an increase in the father’s time is supported by the family consultant – where there is a report of the mother’s psychologist – where the Court considers that the best interests of the child will be best served by there being less frequency of the periods of time that the child spends with the father – where it is ordered that the child live with the mother – where it is ordered that the child spend time with the father on a fortnightly basis –  where it is ordered that the parties facilitate the child’s attendance for a sleep study but any surgical intervention must be with the written consent of the parties or orders of the Court.

Family Law Act 1975 (Cth) s 60CC, s 61DA, 65DAA

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Zema

RESPONDENT: Ms Kristo

FILE NUMBER: ADC 1306 of 2014

DATE DELIVERED: 11 December 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 7 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mrs Tinning

SOLICITOR FOR THE APPLICANT: Barnes Brinsley Shaw Lawyers

COUNSEL FOR THE RESPONDENT: Mr Lindsay

SOLICITOR FOR THE RESPONDENT: Tindall Gask Bentley

Orders

1. That previous parenting orders be discharged.

2. That the child B born … 2011 (“the child”) live with the wife.

3. That the child shall spend time with the husband each fortnight as follows:

   (a)from 3 pm (or the conclusion of kindergarten whichever is the earlier) until 7 pm on Tuesday commencing 22 December 2015 and each alternate week thereafter;

   (b)from 5 pm Friday 11 December 2015 to 5 pm Sunday 13 December 2015;

   (c)from 10.30 am on 25 December 2015 to 10.30 am on 27 December 2015;

   (d)from 5 pm Friday 8 and 22 January 2016 to 5 pm Sunday 10 and 24 January 2016;

   (e)from 5 pm Friday to 9 am on the following Monday commencing 5 February 2016 and each alternate week thereafter.

4. That all handovers that do not take place at the child’s kindergarten shall take place as follows:

   (a)at the commencement of the child’s time with the husband at the wife’s home or as may be otherwise agreed;

   (b)at the conclusion of the child’s time with the husband at the Suburb C Police Station or as may be otherwise agreed.

5. That providing the parties do not commit the child to commence attendance at any particular school in the 2017 academic year, the parties shall do all things and sign all such documents as may be necessary to enrol the child at D School at Suburb E, F School and any other school as each of the parties may request.

6. That the parties do all things necessary to enable the child to undergo a sleep study at the H Hospital or at such other place as Dr G may advise providing that each of the parties shall be restrained and an injunction is granted restraining them from scheduling the child to undergo any subsequent surgical procedure except with the written consent of the parties or by order of this Court.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1306  of 2014

Mr Zema

Applicant

And

Ms Kristo

Respondent

REASONS FOR JUDGMENT

INTRODUCTION 

1. By Amended Initiating Application filed 5 March 2015 Ms Zema (“the wife”) seeks parenting orders in respect of B born in 2011 (“the child”).

2. A summary of the orders sought is that the wife do have the sole parental responsibility for the child, that she live with her and spend time with the husband as follows:

   (1)Until 1 July 2016, each Wednesday between 12 noon and 5 pm and each Saturday between 10 am and 6 pm.

   (2)Between 1 July 2016 and 15 August 2017, the time is extended such that upon the child commencing grade level reception, each Tuesday from the conclusion of school (or 3 pm if not a school day) until 6 pm and each alternate weekend from 10.30 am Saturday until 10.30 am Sunday.

   (3)Thereafter, the time that the child is to spend with the husband is to gradually increase between the period 15 August 2017 and 15 August 2019.

3. By Amended Response filed 22 May 2015, the husband seeks orders that the parties have equal shared parental responsibility for the child and from 15 August 2015 until the end of term 1 in 2017, she should spend time with him as follows:

   (1)In week 1:

   (a)from 12 pm to 5 pm on Wednesday;

   (b)from the conclusion of kindergarten or school (4 pm if a non-school day) on Friday until 5 pm on the following Sunday.

   (2)In week 2:

   (a)from 5 pm to 7 pm on Tuesday (to attend swimming);

   (b)from the conclusion of kindergarten school (or 4 pm if a non-school day) on Wednesday until the commencement of kindergarten or school the following Thursday.

   (3)Thereafter, the husband seeks that time shall increase such that from term 1 in 2019, the child shall spend time with each parent on a week about basis.

   (4)In addition, commencing in 2015 and each alternate year thereafter the husband seeks time with the child from 5 pm on 24 December until 11am on 25 December and in 2016 and each alternate year after from 11 am on 25 December until 5 pm on 26 December.

4. The Amended Response also introduces orders for settlement of property and seeks that the wife’s application for spousal maintenance be dismissed.

5. On 20 October 2014, Judge Harland listed the matter for final hearing to commence on 12 May 2015 and put in place the following arrangements for the child to spend time with the husband:

   (1)each Wednesday from 12 noon until 5 pm; and

   (2)From 10 am Saturday until 10.30 am Sunday of each alternate week.

6. In addition, the husband is able to communicate with the child each Tuesday at 9 am.

7. In preparation for the trial, a further report from the family consultant was ordered.  Relevant to the parenting dispute, it was further ordered on 23 April 2015 that the child spend time with the husband each alternate Tuesday from 5.45 pm until 6.45 pm to enable the husband to take her to her swimming lessons.

8. On 2 September 2014 orders were made that the husband do pay to the wife by way of interim spousal maintenance the sum of $450 per week.  That order continues.

9. The trial did not proceed as listed and the proceedings were transferred to this Court by order dated 10 June 2015 noting that the parenting issues were ready to proceed and that the trial estimate was six to eight days.

10. By Amended Application in a Case filed 4 December 2015, the husband seeks to increase the time that the child spends with him from two nights to three nights per fortnight, that he spends time with the child from 3 pm on 24 December 2015 until 3 pm on 25 December 2015 and that handovers that do not place from the child’s kindergarten should be changed from the current venue being a police station to an agreed fast food outlet.

11. There is also a dispute as to the inability of the parties to agree upon a school that the child will attend commencing in the 2017 academic year.

12. The husband also seeks a variation of the spousal maintenance order, that it be reduced to $150 per week.

13. The catalyst for the Amended Application was an application by the husband that the wife be restrained from scheduling the child to undergo any surgical procedure or involvement in a sleep study without the husband’s consent.

14. By Response filed 3 December 2015, the wife seeks the further variation of the current arrangements such that the child spends time with the husband as follows:

    a)In week 1:

    (i)from the conclusion of kindergarten (or 3 pm if not a kindergarten day) until 6 pm;

    (i)from 10 am Saturday until 12.30 pm Sunday.

    (b)       In week 2:

    (i)       from 5.15 pm to 6.15 pm on Tuesday;

    (ii)from the conclusion of kindergarten (or 3 pm if not a kindergarten day) until 6 pm on Thursday;

    (iii)     from 10.30 am Saturday until 12.30 pm on Sunday.

15. In addition, the wife proposes that the child should spend time with the husband from 10.30 am on 25 December 2015 until 10.30 am on 26 December 2015.

16. The wife seeks orders that will enable the child to be enrolled on a waiting list for Trinity College, but agrees to cooperate with the enrolment of the child at D School and F School.

17. The wife seeks that subsequent to the sleep study and if the child’s Ear, Nose, Throat specialist recommends that she undergo surgery, then she seeks orders that would require the parties to facilitate the proposed medical intervention. 

18. The hearing on 7 December 2015 related only to parenting issues.  Judgment  was reserved.

19. Consideration of the husband’s application to seek a reduction of spousal maintenance as ordered is listed for hearing on 11 December 2015.

THE PROCEEDINGS

1. The husband’s application is supported by the following documents:-

   (1)Affidavit filed 13 November 2015

   (2)Financial Statement filed 13 November 2015

   (3)Further Affidavit in reply filed 4 December 2015

2. The Response of the wife is supported by her Affidavit filed 3 December 2015.

3. In addition, by consent, I received a report from the wife’s psychologist dated 6 December 2015.

4. At the commencement of submissions a further position was put forward on behalf of the wife namely, that the child would spend time with the husband each alternate weekend from 6 pm Friday to 4 pm Sunday and each Wednesday from 5 pm to 7 pm on the basis that arrangements could be made to change her swimming class from Tuesday to Wednesday.

5. The wife also proposes a change to the handover arrangements such that at the commencement of the husband’s time, he should attend the wife’s home and at the conclusion thereof the wife would deliver the child to the home of the child’s aunt providing the husband is not present.

6. In addition, the wife proposes that the child spend time with the husband during the Christmas period from 10.30 am on 25 December 2015 to 10.30 am on 26 December 2015, whereas the husband now presses for the time over the Christmas period to be extended to 5 pm on 27 December 2015.

7. The parties have also agreed that the child will undergo a sleep study, but that any decision as to subsequent surgery will require the consent of the parties or order of this Court.

ISSUES

1. The husband refers to the report of the Family Consultant dated 9 April 2015.  He considers that the conclusions and recommendations are strongly supportive of the child spending longer periods of time with the husband.

2. The family consultant considers that the child “continues to present as sharing a strong and loving relationship with both parents”.  She did not consider that there were any concerns of significance in respect of either party’s ability to meet these daily needs, but did note that the wife is hypervigilant in respect of the child’s behaviour and conduct and the application by the husband is a matter of extreme anxiety and stress for the wife.

3. Nonetheless, the child impressed the family consultant as being “active, vocal, confident, determined and eager to explore an unfamiliar environment.  She continues to progress well in all areas according to parent’s report and the results on the development screening test”.

4. I note that the report was directed to the substantive issues that would have been the focus of the trial in May 2015 namely, the move towards an arrangement of equal care.  The family consultant was not supportive of that proposal, but did consider that an extension of the child’s time with the husband was supported up to the maximum five days, with the implementation to be determined by evidence.

5. Relevant to the current consideration, the family consultant considered that once overnight stays were established for one night a week, it would not be controversial for the time to be extended to two consecutive overnights on alternate weekends whilst continuing daytime visits on Wednesdays.  When the child was 4 ½ to 5 years consideration might be given to the overnight time being extended to three overnights per fortnight, possibly by the introduction of a sleepover on one Wednesday per fortnight.

6. At the time of the hearing the child is 4 years and 4 months.  It is reasonable to assume that the wife considers there is some strength at least to the initial recommendations of the family consultant and this is consistent with her concession of a consolidation of the overnight periods into one continuous period from Friday to Sunday each alternate weekend.

7. At the commencement of the hearing I raised with the parties whether the focus should be a reduction in the frequency of the periods that the child spends with the husband in preference to longer periods and possibly to include Friday to Monday of each alternate weekend.

8. In the context of that consideration, the husband makes a concession that there should be a lead-in time before an extended period was put in place comprising two periods of time concluding on Sunday night rather than on Monday.

9. He was not supportive of moving the swimming from Tuesday to Wednesday until appropriate arrangements could be made to change the swimming classes.

10. The husband argues that the child has been spending overnight time in his care since February 2015 on the basis of one night per week.  There has been no increase in that time.  There is no reason why there should not be an increase.  It is indicated and indeed supported by the family consultant.

11. There is no suggestion that the husband’s behaviour with the child is inappropriate or that he is not otherwise able to adequately and appropriately care for the child in terms of the child’s routines and necessary requirements.

12. His affidavit reflects that the child is polite, well-mannered and interacts positively with the husband’s partner, her two children and their new baby.  Generally, the husband states that the parties have a dysfunctional relationship.  Their communication is stilted and barely civil.  There is a growing level of mistrust between the parties.  For his part, the husband considers that the wife will use any opportunity to deny him time with the child.  For her part, she feels intimidated and uncomfortable by the husband and does not consider that he is in any way respectful of her parenting of the child and is resistant to providing information that she considers is both necessary for the proper care of the child but also would be of assistance in allaying her anxiety.

13. There is a stark difference in the parties view of the behaviour, demeanour and development of the child.  The husband considers that the child copes well with the current arrangements, whereas the wife considers that the child has recurrent behavioural difficulties relating to hyperactivity, disruption to her digestive system including loss of appetite, disruption to her toileting including wetting herself, disturbed sleep, grinding of teeth and self-soothing behaviours.  The wife argues that the time spent between the child and the husband has had a detrimental effect on the child and any extension as proposed by the husband will only likely exacerbate the problem.

14. The parties have little or no ability to communicate with each other at an adult level.  Whilst there is no suggestion that either of them have failed to comply with any orders of the Court, equally there is a high level of tension in respect of the arrangements for the child to transition between the parties.

15. Hitherto, the wife has insisted that handover take place at a police station.  To her credit that position has now altered but again, there are difficulties in the mechanics of any alternate arrangement.

16. The wife rejects the husband’s proposal that the handover be at a fast food outlet.  It seems clear that unless the child would suffer adverse consequences, the frequency as currently promoted by the current orders are now introducing a level of distress and conflict that is not in the best interests of the child.  The child is entitled to move from the care of one parent to the other with the least hostility and anxiety as is possible.

WIFE’S HEALTH

1. The wife considers that she has suffered from poor health.  She seeks assistance from her general practitioner and a psychologist.  She believes that the deterioration in her health is directly related to her acute distress and anxiety associated with the current application before the Court.  She has panic attacks and she considers that her symptoms are worsening.

2. The report of her psychologist notes that upon presentation the wife:

   …was significantly less well than previously …She presented with extreme stress and anxiety with elements of panic and appeared pale, drawn and sickly and was noted to be shaking (her hands).

3. Notwithstanding her adverse presentation, it was not the opinion of the psychologist that her ability to care for the child was compromised, but that there may be an impact upon her general health and wellbeing.  There is no risk to the wife in the short term, but there is some uncertainty as to the long term effect of stress, anxiety and her general demeanour.

4. It is submitted that if an interim order is made which increases the husband’s time with the child this is likely to have a “very significant and detrimental impact” on the wife and may well translate to stress, anxiety or trauma to the child.

5. There are recommendations to enable the wife to better cope with the anxiety arising from the proceedings and it is noted that the wife attends upon her psychologist by regular arrangement and is to commence with a psychiatrist in February 2016.  It is the belief of the psychologist that it is only after the proceedings have been resolved that the wife will be able to take appropriate steps to address her mental health.

LEGAL PRINCIPLES

1. I have regard to the decision of the Full Court in Goode & Goode (2006) FLC 93-286. At paragraph 82 of the judgment the following is stated:

   In an interim case that would involve the following:

   (a)identifying the competing proposals of the parties;

   (b)identifying the issues in dispute in the interim hearing;

   (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 parent unless it is contrary to the child’s best interests or 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 the considerations of one or more of the matters in s 60CC;

   (j)if the presumption is not applied or is rebutted, then making such an order as is in the best interests of the child, as a result of considerations 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 party has sought it, the Court considers after affording procedural fairness to the parties it is in the best interests of the child.

1. The parties do not argue that there are issues of family violence or abuse relevant to the interim proceedings.  What is being sought by each of the parties is at best a modest variation to the orders that have been extant since February 2015.

2. The Court has considered that in the circumstances of this case, the interests of this child may well be better served by there being less frequency of the periods of time that she spends with the husband but consistent with the recommendations of the family consultant (and appropriate applicable to the interim proceedings) consideration could be given to the periods of time being extended.  The wife considers, although with some reluctance, that the child could spend two consecutive nights a fortnight with the husband.  He considers that this could be extended to three nights a fortnight.

3. I am advised that whilst not relevant at present, in 2016 the child will attend kindergarten on Tuesdays and Thursdays.  The husband is keen to have some involvement with the child’s kindergarten.  The wife considers that it would be too much for the child if she were to come into the husband’s care at the conclusion of kindergarten on Tuesday and then remain with him until swimming lessons conclude at 6.45 pm.

CONCLUSION

Time on Tuesday or Wednesday

1. The husband would wish to have some involvement with the child’s kindergarten.  That does not seem unreasonable.  It is also sensible that it coincide with the swimming lessons which currently take place each alternate Tuesday.  At present and until February 2016, the child does not attend kindergarten.  It is the wife’s proposal that the child spend time with the husband each alternate week from the conclusion of kindergarten (or 3 pm if not a kindergarten day) until 6 pm on Thursday.  I can see no good reason why conceptually this should not be retained but should apply to Tuesday with a modest extension to 7 pm.  Whilst it is slightly longer than the wife would want, it would only apply in week one and in week two the husband would spend no other time with the child than on the alternate weekends as proposed by each of the parties.

2. Accordingly, I propose to order that in week one the child shall spend time with the husband from the conclusion of kindergarten (or 3 pm if not a kindergarten day) until 7 pm.

Alternate weekend time

1. Both parties agree that the child should spend time with the husband each alternate weekend from Friday to Sunday.  There is no kindergarten on Friday and the wife would seek that the time commence at 6 pm and conclude at 4 pm on Sunday.  The husband would seek that after two periods, his time should conclude Monday morning.

2. There is no reason why the time that the child spends with the husband should not be extended, but not surprisingly, it is the manner of transition that needs to be carefully considered. The child may need to become accustomed to spending longer periods with the husband and the wife’s anxiety needs to be brought to account not as a barrier, but rather, to ensure that the child is better able to enjoy her time with the husband if she is not exposed to the wife’s overt anxiety and distress.

3. Accordingly, I propose to order that the child spend time with the husband on each alternate weekend from 5 pm Friday to 5 pm Sunday commencing 11 December 2015 for four periods and thereafter, time is to be extended to 9 am on the following Monday.

Christmas period

1. As matters transpire, the child would spend time with the husband on 25 December 2015.  The important day is Christmas Day.  The parties have agreed that the husband’s time shall commence at 10.30 am.  There is no reason why the proposed alternate weekend arrangements should unnecessarily change and accordingly, I propose to order that the child come into the care of the husband at 10.30 am on Christmas Day and remain with him until 10.30 am on 27 December 2015.

Handover arrangements

1. The wife proposes that the child be collected from her home at the commencement of the husband’s time where that does not coincide with kindergarten.  She proposes that the child be returned to the wife via the home of the child’s aunt providing the husband is absent from the premises.  The husband is not able to commit to such an arrangement.

2. I propose to put in place orders at least as sought by the wife in part namely, that the child’s time with the husband shall commence from the wife’s home but subject to the agreement of the parties, the child shall be returned to the care of the wife at the Suburb C Police Station.

3. I will also order that the parties facilitate the child’s attendance for a sleep study, but that each of them shall be restrained from causing the child to undergo any surgical intervention without the consent of the parties or order of the Court.

4. I make orders as appear at the commencement of these reasons.

I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 11 December 2015.

Associate:

Date:  11 December 2015