Mother Seeks Reduction of Children's Time with Father

Holder & Adams [2022] FedCFamC2F 1104 (22 August 2022)

The parties are in dispute over the Registrar’s decision involving parenting arrangements for the two children of the relationship, each with special needs.  The mother seeks a reduction of time the children are to spend with the father and a discharge of orders for her to undergo alcohol use testing.  The Court, in ruling on this dispute, assessed the level of the parties' post-separation conflict.

Facts

The parties commenced cohabitation in 2008.  X was born in 2010 and is in year 6 at J School.  The school is within walking distance of the mother’s home.  X has been diagnosed with Autism Spectrum Disorder, Level 2, and is in receipt of support through the National Disability Insurance Scheme.  

Y was born in 2012 and is in year 5 at J School.  Y has been diagnosed with ADHD and Oppositional Defiance Disorder (ODD) and takes Ritalin daily.  The parties separated on 14 January 2017.  The father vacated the home in Suburb P and the children continued to live in the former matrimonial home with the mother.  The father lived in close proximity to the mother.

A Parenting Plan was entered into between the parties on 13 June 2017.  Pursuant to this plan during school terms the children spend 9 nights a fortnight with the mother and 5 nights a fortnight with the father.  The children are to spend half of each school holiday period with each party.  The parenting arrangements were confirmed and continued by the parties at a subsequent mediation between them in July 2019.

On 28 October 2019, an interim Apprehended Domestic Violence Order was made for the protection of the mother and children and restricting the behaviour of the father.  The father was charged with threatening, stalking and harassing the mother.  The father entered a plea of guilty and he was sentenced to a Conditional Release Order for a period of 9 months.  The parties attended a further mediation in 2021 but were unable to reach agreement as to the parenting arrangements for the children.

A dispute arose between the parties with respect to the time the children were to spend with each of them over the 2021 Christmas period.  The arrangement was for the father to return the children on 27 December 2021.  The father did not return the children to the mother until 2 January 2022.  The father alleges his retention of the children arose from his concerns as to the mother’s consumption of alcohol. 

The mother alleges it arose from the dispute over the children’s time with the father over the Christmas period.  On 9 January 2022 the father, Ms L, N and M relocated to Suburb K.  The father’s home is now approximately 40 minutes drive from the mother’s home and the children’s school.  The father’s place of employment is approximately 10 minutes drive from the children’s school.

The children spent no further time with the father until after the commencement of the new school year in February 2022.  The children subsequently spent time with each party in accordance with the arrangements set out in the 2017 parenting plan until the current interim Orders, the subject of review, were made.

Issue 

Whether or not the time the children are to spend with the father should be reduced. 

Applicable law

Family Law Act 1975 (Cth) s 65 - subject to certain sections, a Court may make such parenting order as it thinks proper.

Dieter & Dieter [2007] FamCA 608 - provides that the assessment of risk thus requires the consideration of two elements; the consideration of whether it is likely that some harmful event will occur and then a consideration of the severity of the impact caused by such harmful event.

M & M (1988) FLC 91-979; [1988] HCA 68 - provides that the Court must assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.

 

Marvel & Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101 - provides that where risk is alleged in interim proceedings, a conservative approach is warranted.

 

Salah & Salah (2016) FLC 93-713; [2016] FamCAFC 100 - affirmed that the procedure for making interim orders would continue to be a truncated process in which the Court should avoid making findings based on contested facts, but rather look to agreed facts and issues not in dispute, whilst still following the legislative pathway.

 

SS & AH [2010] FamCAFC 13 - provides that apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.

Analysis

There is no independent evidence from the children’s school as to any difficulties the children are currently experiencing.  There is no evidence that any difficulties the children may be experiencing as alleged by the mother are caused by their current parenting arrangements.  There is no evidence before the Court as to how the children would cope with a significant reduction in their time with the father.  The mother’s proposal will have the children moving between households on six occasions each fortnight and will involve the parties coming into contact with each other on three of those occasions.

The proposal of the father and the Independent Children’s Lawyer will involve two changeovers a fortnight and will not involve the parties coming into contact at all when the children move between the respective households during the school term.  The proposal of the father and Independent Children’s Lawyer that the children during school terms commence and conclude their time with the father at school will decrease the opportunity for these parties to interact.  Further, changeover occurring at the children’s school during school terms means that there can be no argument as to when the children’s time is to commence or conclude – there can be no arguments between the parties as the children will be required to be collected from school, the conclusion of school and returned by the commencement of school. Failure to ensure this happens will form part of the school records and the issue addressed again if required at the final hearing.

Conclusion

The orders sought by the father and the Independent Children’s Lawyer are in X and Y’s best interests.  The time for filing an Application for Review of the Orders made on 30 May 2022 is extended to 20 July 2022.  Orders 2(a), 2(b) and 3 made on a defended basis on 30 May 2022 are discharged.

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