Aaron & Aaron
[2008] FMCAfam 169
•3 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AARON & AARON | [2008] FMCAfam 169 |
| FAMILY LAW – Contravention of previous orders. FAMILY LAW – Parenting orders – consideration of primary and secondary factors. |
| Family Law Act 1975 (Cth), ss.60B, 60CC, 65DAA(1) |
| B & B [2007] FMCAfam 82 Goode v Goode (2006) 206 FLR 212; [2006] FamCA 1346 Hungerford & Tank [2007] FamCA 637 Shelter v Shelter [2007] FMCAfam 898 |
| Applicant: | MR AARON |
| Respondent: | MS AARON |
| File Number: | NCC 1795 of 2007 |
| Judgment of: | Lucev FM |
| Hearing date: | 24 September 2007 |
| Date of Last Submission: | 24 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 3 March 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Emery |
| Solicitors for the Applicant: | Linda Emery & Associates |
| Counsel for the Respondent: | Mr Williamson |
| Solicitors for the Respondent: | Curtis Grant Irving |
ORDERS
The Court declares that the Mother, Ms Aaron, has contravened orders 2, 4(b), 18 and 19 of the orders made by the Gosford Local Court on 26 October 2005, and orders that:
(a)the Mother enrol in and attend a parenting course approved by the Court’s Dispute Resolution Co-ordinator by 30 June 2008; and
(b)that the Children spend time with the Father, Mr Aaron from 5.00pm on the first Saturday to 5.00pm on the last Sunday of the next school holidays.
The Court orders that orders 4 to 14 inclusive of the orders made by the Gosford Local Court on 26 October 2005 be discharged.
Subject to order (1), the Court orders that with effect from 5.00pm on 8 March 2008 the Children, J born in 2001 and D born in 2003:
(a)live with the Father;
(b)spend time with the Mother:
(i)each alternate weekend (commencing Friday 14 March 2008) from 5.00pm Friday to 5.00pm Sunday;
(ii)for the first half of all New South Wales gazetted school holidays in 2008 and each alternate year thereafter;
(iii)for the second half of all New South Wales gazetted school holidays in 2009 and each alternate year thereafter;
provided that the parties may agree on alternative arrangements by written agreement signed by both of them, and further provided that the Children are not to spend any time with Mr C under any circumstances.
The Court orders that the parties consult with respect to arrangements for:
(a)the transport of the Children; and
(b)any sporting arrangements for the Children;
not less than 24 hours prior to any occasion on which the Children are required to be transported, and reach agreement about the manner in which the Children are to be transported, failing which the parent with whom the Children are living or spending time is to arrange to transport the Children by the quickest available public transport, to pay for that transport and to accompany the Children on that transport.
IT IS NOTED that publication of this judgment under the pseudonym Aaron & Aaron is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
NCC 1795 of 2007
| MR AARON |
Applicant
And
| MS AARON |
Respondent
REASONS FOR JUDGMENT
Introduction
There are two applications before the Court.
The first application by the Father, Mr Aaron, on 7 June 2007, alleges contravention by the Mother, Ms Aaron, of various orders made by the Local Court at Gosford on 26 October 2005.[1]
[1] “Gosford Local Court Orders”.
The second application by the Father on 7 June 2007 seeks to:
a)discharge the Gosford Local Court Orders, and
b)have the Court make new orders concerning the live with and time spent arrangements for the two children of the marriage, J born in 2001 and D born in 2003.[2]
[2] Collectively, “the Children”, individually “the Oldest Child” and “the Youngest Child” respectively.
The Father relied upon:
a)the contravention application filed on 7 June 2007;
b)the application for new parenting orders filed on 7 June 2007;
c)the Father’s affidavit sworn 4 September 2007;[3] and
d)the affidavit of Ms A[4] sworn 4 September 2007.[5]
[3] “Father’s Affidavit”.
[4] “New Wife”.
[5] “New Wife’s Affidavit”.
The evidence of the New Wife was not subject to cross-examination or challenged at all, and therefore must be accepted unless inherently incredible or unbelievable, of which it is neither.
The Mother relied upon:
a)the response filed on 6 July 2007;
b)the Mother’s two affidavits sworn on 5 July 2007,[6] one relating to the alleged contraventions the other relating to the parenting orders;
c)the Mother’s affidavit sworn 14 September 2007;[7] and
d)the Mother’s affidavit sworn 19 September 2007.[8]
[6] Respectively “Mother’s First 5 July Affidavit” and “Mother’s Second 5 July Affidavit”.
[7] “Mother’s 14 September Affidavit”.
[8] “Mother’s 19 September Affidavit”.
Because of the nature of the contraventions alleged and the live with and time spent orders now sought it is necessary to set out the terms of the Gosford Local Court Orders, which were, by consent, as follows:
a)That the children of the marriage J born in 2001 and D born in 2003 reside with the Mother.
b)That the Mother and the Father have joint and shared responsibilities for the children’s long term care, welfare and development including but not limited to the parties reaching agreement as to any pre school, child care or school prior to such enrolment and/or change.
c)The Mother and Father have the sole parental responsibility for making decisions that the day to day care welfare and development of the children during periods when the children a re living with either the Mother or the Father respectively.
d)The Father have contact with the children as agreed between the parties and in the absence of any agreement as follows:
Initial contact every second weekend:
i)The Father have overnight contact with the children every second weekend and such overnight contact to commence between 10:00am to 11:00am Saturday and continue until 5:00pm Sunday and such contact to be for the next six months commencing on first Saturday following the date of these orders;
Every Second weekend contact after six months
ii)The Father have contact to commence at approximately 7:00pm Friday until 5:00pm Sunday each alternate weekend commencing on the first Friday 6 months after the date of these Orders;
Contact after one or both children commence playing weekend Winter sport:
iii)At such time as either or both of the children are playing weekend Winter sport contact with the Father shall commence at the conclusion of any weekend sport in which the boys are registered to play in the Winter season with the contact collection to be at the grounds of that sport on such occasions and contact shall continue until 5:00pm Sunday provided that the father may attend any such sporting event;
Contact after one or both children commence playing weekend Summer sport:
iv)Arrangements be made by the mother and father to facilitate the children participating in a summer sport such as “Nippers”, or any other sport as the children may choose. For the purpose of the children participating in Nippers, the father is to arrange for enrolment in Nippers in the vicinity of the father’s home on the NSW Central Coast and is to meet all costs associated with that registration. The Mother is to arrange registration with Nippers in the vicinity of the mother’s home and is to meet the costs of that registration. Each parent will facilitate the children attending Nippers at their local club during the weekends on which they have contact with the children.
v)Once J commences school, the Father shall have contact with both children for one half of each school holiday period excluding Christmas School holidays as agreed between the parties and failing agreement the first half of the school holiday periods in the odd years from 10:00am on the day following the last day of term to 5:00pm on the day being the midway point and the second half of the school holidays periods in the even years from 10:00am on the day being the midway point to 5:00pm on the day before school recommences provided that if the Father is unable to obtain leave to facilitate the first or second half of the school holiday periods for a block period of no longer than half the holidays at a time to be notified in writing to the Mother no less than 6 weeks prior to such school holidays.
Record of Changes in Contact Arrangements:
e)Each party shall keep written records of the changes in contact arrangements which occur.
Transport arrangements initially:
f)i) That for the contact described in clause 4a and until such time as the mother is the registered owner of a motor vehicle, the mother shall deliver the children to Cxxx Railway Station and the father shall collect the children from Cxxx Railway Station at the commencement of each contact and the father will return the children to Cxxx Railway Station and the mother will collect the children at the conclusion of each contact period;
ii) For the purpose of contact as described in clause 4b and until such time as the mother is the registered owner of a motor vehicle, the father shall collect the children from the mother’s residence at 7:00pm on the Friday evening. The Father will return the children to Cxxx Railway Station and the Mother will collect the children at the conclusion of each contact period at 5:00pm;
iii) If, in the days leading up to contact with the father, the children are ill and the mother deems it not in the children’s best interests to travel by train whilst in that condition, the mother is to notify the father not less than 24 hours before the commencement of the contact and the father is to arrange for the children to be collected from the mother’s residence and transported by car to the father’s residence for the purpose of the contact. Alternatively, if this cannot be practically achieved, the parties may negotiate an alternative time for the father to have a make-up contact visit;
Mother to advise of acquiring a motor vehicle
g)On becoming the registered owner of a motor vehicle the Mother shall notify the Father of having acquired such vehicle and such notice being provided in writing.
h)At the first contact period after the Mother has provided the Father with notification of her acquisition of a motor vehicle, the Mother shall deliver the children to the Father at Mxxx Shopping Centre at the commencement of contact (the exact meeting point and time to be arranged between the parties) where the Father is to collect the children for alternate weekend contact or any other contact covered by the provisions of these Orders.
i)At the conclusion of such contact pursuant to clause 8 hereof, the Father shall deliver the children to the Mother at a meeting point and time to be arranged at Mxxx Shopping Centre
j)Where either party is unable to do the transporting of the children involved in these contact orders, that person who is due to be doing the transporting may nominate a responsible adult who holds a current driver’s licence who is known to the children as a substitute person to transport the children.
Christmas contact
k)The Father to have contact with the children from between 10:00am to 11:00am on 18 December 2005 to 10:00am 26 December 2005.
l)a) The Father is to have contact with the children from 10:00am 26 December 2006 until 5:00pm 2 January commencing 2007 and thereafter each alternate year;
b) The Father to have contact with the children from between 10:00am and 11:00am on the day after school term ends to 10:00am Boxing Day commencing 2007 and thereafter each alternate year.
m)When J commences school, contact with both children, in addition to the contact over Christmas hereinbefore provided there to be a further 2 week block period as agreed and failing agreement at a time to be notified to the Mother not less than 6 weeks prior to the school term concluding provided that if the father is unable to obtain leave to facilitate that contact, such alternative arrangements be notified to the mother no less than 6 weeks prior to the school term concluding.
n)For the purposes of facilitating Christmas contact as hereinbefore provided, the Father shall be responsible for collecting the children at the Mother’s residence at Jxxx or at such other agreed address at the commencement of contact and returning the children to the Mother's Jxxx address or such other agreed address at the conclusion of contact.
Telephone contact:
o)When the children are in each parent’s care, the respective parent with children is to permit and shall encourage telephone contact between the absent parent and the children:
i)Daily telephone contact;
ii)The parties shall each ensure they have either a land line number connect or mobile telephone number and the number provided to the other party;
iii)During any period the children are in the care of the Father, the Mother shall be entitled to telephone the children daily;
iv)The parties shall ensure that if either child wishes to speak to the other parent, they shall telephone other parent to facilitate such telephone contact.
p)Neither parent will denigrate the other in the presence of the children.
q)That the Mother provide the Father on a regular basis with copies of all school reports on school progress and behavioural issues including other school circulars in relation to the children as soon as practicable after they are received. The Father is authorised to obtain any information from the school or the school forward any information to the Father regarding the children and the Father shall be entitled to be recorded at the children’s schools as an emergency contact.
r)Whilst the children are in the care of each respective parent, the parents shall advise each other as soon as possible of any major medical issues involving the children and keep the other parent informed of any required medication or treatment.
s)That each parent keep the other parent advised in writing of his/her current residential address and telephone number and each parent is to notify the other parent in writing of the name, age and occupation of all other persons living in the household where the children will be staying during the contact with that parent and advise the other parent within 7 days of any change to the make-up of that household.
Contraventions alleged
Contraventions of orders 2, 4(b) 15(a), 17, 118, and 19 of the Gosford Local Court orders are alleged.
Order 2
It is alleged that in 2006 and 2007 in breach of order 2:
“The mother has unilaterally enrolled [the Oldest Child] in Jxxx School and [the Youngest Child] in Jxxx Pre-school and then again unilaterally changed the schooling of the children without prior notice or agreement”; and that “[the Oldest Child] has been removed from Jxxx School and is not involved in any school at present. [The Youngest Child] has been removed from Jxxx Pre-school and it is not known if he is enrolled anywhere.”
The Father’s evidence was that the Mother:
a)in 2006 enrolled the Oldest Child in Jxxx School and the Youngest Child in Jxxx Pre-School unilaterally and without prior consultation; [9] and
b)in or about May 2007 the Mother withdrew the Children from the Jxxx schools unilaterally and then enrolled them elsewhere (and at the time it was thought probably at schools in Uxxx) without consultation with the Father.[10]
[9] Father’s Affidavit, Annexures B, O at paras 14-16, and Q at para 6.
[10] Father’s Affidavit, Annexure S.
The Mother asserted that in October 2006 she had provided enrolment forms or documents to the Father concerning the Jxxx schools, and that the Father returned signed forms to her without saying anything further,[11] but the Father says that these were just school booklets and not enrolment forms or documents.[12] The Father agrees that he was sent a list of pre-schools for the Youngest Child but that there was no further communication prior to the Youngest Child’s enrolment at the Jxxx Pre-School.[13]
[11] Mother’s First 5 July Affidavit, paras 4-7; Father’s Affidavit, Annexure P at para 4.
[12] Father’s Affidavit, para 17.7.
[13] Father’s Affidavit, para 17.4.
In relation to Uxxx the Father says that he was only provided with school booklets, not enrolment documents.[14] The Mother says that she attempted to speak to the Father several times concerning enrolments at Uxxx, and was ignored by the Father apart from one occasion on which he told her that the Children would “only be moved [to Uxxx] over his dead body.”[15] The latter statement is consistent with the Father’s sworn refusal to refuse consent for the Children to be enrolled at Uxxx schools.[16]
[14] Father’s Affidavit, para 26.4.
[15] Mother’s First 5 July Affidavit, para 8.
[16] Father’s Affidavit, para 17.6.
The Mother produced in evidence a New South Wales Department of Education and Training form signed by the Father on 21 August 2006 for the enrolment of the Oldest Child.[17] The Father agrees he signed this enrolment form, but says he did not sign an enrolment form for the Youngest Child.[18] The Father did not mention the signed enrolment form in the Father’s Affidavit.[19] However, in cross-examination the Mother conceded that the enrolment form was not sent to the Father until after the Oldest Child commenced at school in Uxxx.[20]
[17] Mother’s 14 September Affidavit, paras 16 and 21, and Annexure A.
[18] Transcript at 8 and 10.
[19] Transcript at 10.
[20] Transcript at 24.
The contravention is proven. The Mother, notwithstanding the father’s intransigence concerning the Uxxx enrolments, had no reasonable excuse for the contravention. It is a serious contravention given the centrality of education in children’s lives.
Order 4(b)
It is alleged that the Mother contravened order 4(b) – as subsequently amended to commence from 5pm Friday rather than 7:00pm Friday – from 25 May 2007 and continuing, by not allowing time spent[21] to commence at approximately 7:00pm Friday. The Father appears to have lost about seven to ten nights time spent (the evidence is a little imprecise in this regard).
[21] In order 4(b) referred to as “contact”.
This contravention was admitted by the Mother.
The Mother did not accept complete responsibility for the contravention, saying that there had been “difficulties” (which were not explained), and saying that the Father had not accommodated amendments to the Gosford Local Court Orders.[22] The Father said he had been prepared to be flexible in relation to those Orders, and cited at least three examples off-the-cuff under the pressure of cross-examination.[23]
[22] Mother’s First 5 July Affidavit, para 3.
[23] Transcript at 11.
The contravention is proven. The Mother does not have a reasonable excuse. It is a serious contravention given that live with and time spent orders are of the essence in family law proceedings.
Order 15(a)
It is alleged that from 2005 to date the Mother has breached order 15(a) because “[the Father] phones on the [the Respondent’s Mother] mobile and either the phone is not answered or a message left and no call is returned.
The Father’s evidence is that there were more than twenty occasions in 2006 when he left a message on the Mother’s mobile phone and calls were not returned.[24] It is said that the alleged conduct – the refusal to return calls when a message was left – continued into 2007.[25]
[24] Father’s Affidavit, paras 10.2 and 12.2 and annexure B at para 4.
[25] Father’s Affidavit, annexure Q.
The Mother says that the she has a mobile telephone which does not operate in all areas of New South Wales, and that she is therefore sometimes out of mobile range and does not receive any messages left on her mobile telephone until she comes back into range, and the Father agrees that this is the case.[26] The Mother says that when this occurs she “encourage[s] the [C]hildren to telephone the [F]ather as soon as possible”, [27] but the Father says that his messages remain unanswered. The Mother denies this is the case.[28]
[26] Mother’s First 5 July Affidavit, para 12-13; Transcript at 11.
[27] Mother’s First 5 July Affidavit, para 14; Transcript at 11.
[28] Transcript at 24-25.
It is difficult to determine where the truth lies in relation to the failure to return messages. In any event, the failure to return messages is not a contravention of the order, which requires the parent with the Children to “permit” contact. The failure to return messages is not necessarily a failure to permit contact, and there was not sufficient evidence to a sufficient standard to persuade the Court that telephone contact had not been permitted by the Mother and there was evidence, that she encouraged the Children to ring, in compliance with the order.
Order 17
It is alleged that the Mother has from 2005 to date breached order 17 because she “has never provided the [Respondent Father] with any copies of any school reports or any information, except on one occasion, the [Mother] notified of an Easter Hat Parade.”
This alleged contravention was withdrawn.[29]
[29] Transcript at 146.
Order 18
From 2007 onwards the Mother is alleged to have “failed to advise the [Father] of [the Oldest Child’s] medical issue relating to his obesity and diet, and that the Mother has failed to pass on written advice from a doctor concerning the Oldest Childs medical condition”, and that the Oldest Child has been fed peanuts to which he allegedly has an allergy.
That part of the alleged contravention relating to the Oldest Child being fed peanuts to which he has an allergy was admitted;[30] otherwise the alleged contravention was denied.
[30] Mother’s First 5 July Affidavit, para 21
In relation to the admission the Mother says that the peanuts were in a confectionery bar given to the Oldest Child by the Mother’s New Friend who was not aware of the Oldest Child’s allergy to peanuts.[31] The Mother has taken steps to rectify that situation, and has “made it clear” to her New Friend, and anyone else who associates with the Children that the Oldest Child is not to be given peanuts.[32]
[31] Mother’s First 5 July Affidavit, para 22.
[32] Mother’s First 5 July Affidavit, para 24.
As soon as she found out the Mother attempted to rectify the situation, but the Oldest Child had already consumed the confectionery bar.[33] There is no evidence of the medical consequences, if any, for the Oldest Child in consuming the confectionery bar, but it is implicit in the admission that it was a major medical issue.
[33] Mother’s First 5 July Affidavit, para 23.
The Father also says that the concern over diet extends to the eating of ice creams with nuts on them on most evenings by the Children when living with the Mother.[34] The Mother says that this relates to incidents when she was staying with her parents at Jxxx and that she used to bite the tops off the ice creams to ensure that there were no nuts left. She did not disagree when it was put to her that the ice cream may still contain traces of nuts, with possible adverse consequences for the Oldest Child.[35]
[34] Transcript at 15.
[35] Transcript at 30-31.
The allegation with respect to the peanuts is proven. Given the nature of the contravention, and the steps taken by the Mother, it seems it is unlikely the same contravention will occur again.
In March 2007 the Father raised with the Mother the question of the Oldest Child’s weight and asked what action, if any, was being taken to deal with the issue.[36] The Mother advised that she provided the child with appropriate food and had consulted a local doctor, Dr M, from whom she was seeking written advice which she said she would pass on to the Father when received.[37] The Father says that no report from Dr M was sent to him and he was not advised orally of its contents. He is concerned because the Oldest Child weighs forty kilograms at age six, and there is a family history on his side of diabetes.[38] The Mother acknowledges that she undertook to provide a doctor’s report to the Father, but says it was never received from the doctor and therefore never supplied.[39] The Mother says she has not thought of going to another doctor.[40]
[36] Father’s Affidavit, annexure O at para 19.
[37] Father’s Affidavit, annexure P at para 6.
[38] Father’s Affidavit, para 17.5.
[39] Mother’s First 5 July Affidavit, para 20.
[40] Transcript at 28.
The Court is not persuaded that in relation to the obesity issue that the Mother has not advised the father of a major medical issue. Indeed there is no proper evidence that the Oldest Child’s alleged obesity is a major medical issue. Furthermore, if the medical report from Dr M has not been provided to the Mother she cannot provide it the Father.
This part of the alleged contravention has not been proven.
Order 19
There are two breaches of order 19 by the Mother that are alleged:
a)that from 2007 onwards she has refused to disclose of the name, age, and occupation of all other persons living in the house where the Children live;
b)that on or about the weekend of 19-20 May 2007 she moved to an address unknown, and when rung by the Father she refused to advise him of the address.
The contravention of order 19 was admitted by the Mother.[41] However, the Mother said that she moved to Uxxx on 20 May 2007, and that by 30 May 3007 she had despatched to the Father her new address by express post.[42] A day after the move to Uxxx the Mother refused to disclose her new address to the Father.[43] Whilst foolish and unhelpful this was not in contravention of order 19. Essentially, the Mother was three days late (and probably four days allowing for next day delivery) in advising the Father in writing of her new address as required by order 19 of the Gosford Local Court Orders.
[41] Mother’s First 5 July Affidavit, paras 29 and 30 and annexures A and B.
[42] Mother’s First 5 July Affidavit, paras 29 and 30.
[43] Mother’s First 5 July Affidavit, para 35.
The contravention is proven. The Mother does not have a reasonable excuse, but the contravention is not of a serious kind, in all the circumstances.
Consideration of Contraventions
There will be a declaration that the Mother has contravened orders 2, 4(b), 18 and 19 of the Gosford Local Court Orders. In the circumstances the Mother will be ordered to enrol in an approved parenting course by 30 June 2008, and to attend the course. There will also be an order that the Children spend additional time with the Father to make up for lost time. Given the imperfect nature of the evidence concerning how much time spent was lost by the Father the Court considers that it is appropriate to order that the Children spend time from 5.00pm on the first Saturday to 5.00pm on the last Sunday of the next school holidays with the Father.
Live with and time spent orders sought
The live with and time spent orders sought by the Father fundamentally change the arrangements under the existing Gosford Local Court Orders, in particular, by:
a)providing that the Children live with the Father rather than the Mother;
b)that the Children spend time with the Mother:
i)each alternative weekend from 5pm Friday to 5pm Sunday;
ii)for two weeks each Christmas holiday period; and
iii)for one half of all school holiday periods;
which effectively reverses the time spent orders.
c)That time spent with the Mother be conditional upon:
i)supervision by the maternal grandmother or another person agreed between the parties in writing of the Mother and the Children during time spent with the Mother;
ii)that the Mother’s current partner be absent during time spent;
iii)that the time spent only be spent at the maternal grandmother’s home at Jxxx.
In the alternative it is proposed that the Court make orders that the Children live week about with the parents, and that the Children reside on the Central Coast of New South Wales with each parent, with each parent being restrained from relocating from the Central Coast without the prior written consent of the other parent or a court order.
Other usual orders are also sought.
Parenting Orders – principles and procedures
The judgment of the Full Court of the Family Court of Australia in Goode & Goode[44] concerned interim parenting orders. The Full Court of the Family Court of Australia in Hungerford & Tank,[45] a case concerning final orders, said that the failure to follow the steps laid out in Goode was an error of law. The steps identified in Goode are as follows:
[44] (2006) 206 FLR 212; [2006] FamCA 1346 (“Goode”).
[45] [2007] FamCA 637 at para. 62 per Warnick, May and Boland JJ.
“(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 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.”[46]
[46] Goode, FLR at 235-236 per Bryant CJ, Finn and Boland JJ; FamCA at para. 82 per Bryant CJ, Finn and Boland JJ. See also B & B [2007] FMCAfam 82 at paras. 2-5 per Wilson FM (“B & B”).
Equal Shared Parental Responsibility
The FL Act presumes that there will be equal shared parental responsibility. Both parties agree that there ought to be equal shared parental responsibility.
Time Spent
The Court must consider whether the Child spends equal time with each parent, that being presumed to be in the best interests of the Child.[47] Equal time with each parent is qualified by a requirement that it be reasonably practical.[48]
[47] FL Act, s.65DAA(1)(a).
[48] FL Act, s.65DAA(1)(b).
It is not presently reasonably practicable for the Children to spend equal time with each parent because of the distance that they live apart.
The question therefore becomes with whom the Children should live, and how much substantial and significant time, or other time, the non-live with parent should spend time with the Children. To determine these questions it is necessary to have regard to the relevant primary and secondary considerations in, and underlying objects of, the FL Act.[49]
Primary Considerations – section 60CC(2)
[49] FL Act, ss.60CC(2), (3), (4) and (4A) and 60B.
Benefit to the Children of having a meaningful relationship with both parents – section 60CC(2)(a)
There can be no doubt that the Children ought to have the benefit of a meaningful relationship with both parents. Both parents agree that there ought to be a meaningful relationship[50] but disagree as to how that is to be best achieved, particularly in relation to with whom the Children should live and the time to be spent with each parent.
[50] Mother’s Second 5 July Affidavit, paras 21-22 and 29.
The question here is how a meaningful relationship can be fostered in circumstances where the parents have a fairly acrimonious and unhelpful relationship and live about two hours drive apart.
The Mother has been the primary carer for the Children since birth, but the Father did make appropriate contributions by undertaking domestic duties associated with the care of the Children until the Mother and Father separated.
The Father’s relationship with the Children is probably not as meaningful as it might be because of the Mother’s action in shifting, initially to Jxxx[51] and then to Uxxx. The Mother says that she had to move to her parent’s house at Jxxx because she was unable to afford rent at that time.[52] The Mother’s relocations to places more than two hours drive from the Father’s residence have made it more difficult, through no fault of the Father, for him to maintain a meaningful relationship with the Children.[53]
[51] Father’s Affidavit, paras 7.5-7.7.
[52] Mother’s Second 5 July Affidavit, para 4.
[53] Transcript at 18 Father’s Affidavit, para 8.2.
Risk of Harm to the Children – section 60CC(2)(b)
This is discussed further below.[54] Suffice to say that the Court considers that there is a risk of harm to the Children from the Mother’s New Friend, and this is acknowledged by the Mother.
Other considerations – section 60CC(3)
[54] See paras 61 and 86-89 below.
Views expressed by the Children – section 60CC(3)(a)
There are no views expressed by the Children which are admissible in evidence.
There is no Family Report in this matter.
Relationship of the Children to parents and other significant persons – section 60CC(3)(b)
The Father appears to have a normal father-son relationship with the Children during the time that he spends with them: playing sports, teaching them reading and written skills and playing in the neighbourhood under supervision.[55]
[55] New Wife’s Affidavit, para 21.
The Mother says that she has a good relationship with the Children.[56]
[56] Mother’s Second 5 July Affidavit, paras 23.
The Father and the New Wife married on in August 2007.[57] The New Wife attests to the fact that she has “a loving and caring relationship” with the Children.[58] There is evidence that she has regularly assisted with driving to pick up and drop off the Children for time spent with the Father,[59] and that she assists the father with the day-to-day care of the Children “including bathing, dressing, reading, cooking, cleaning, washing, shopping, supervising and playing with the children reading stories to them and putting them to bed”.[60]
[57] Father’s Affidavit, para 30; New Wife’s Affidavit, (second) para 5.
[58] New Wife’s Affidavit, para 8.
[59] Father’s Affidavit, para 32.
[60] New Wife’s Affidavit, para 9, see also para 20.
The Father’s New Wife works a very long day: leaving home at 6.00am to go to Sydney where she works and returning at 5.00pm (or possibly up to 6.00pm).[61] That might to some degree affect her ability to build a relationship with the Children if they were to live with the Father. Nevertheless, there is evidence that she does and is prepared to work flexi-time to assist with the Children’s care.[62]
[61] Father’s Affidavit, paras 31.1-31.2; New Wife’s Affidavit, para 22.
[62] Father’s Affidavit, paras 34.4 and 36.
The Father’s parents have moved to the New South Wales central coast to be close to the Father, and are able to provide support and assistance with the care of the Children.[63]
[63] Father’s Affidavit, para 34.4.
The Father’s living arrangements are closest to those of a usual family setting, and appear to be more settled and regular.
The Mother moved away from her parents’ home at Jxxx, sometime in late May 2007, to Uxxx, which is about four hours drive from her parents’ home.[64]
[64] Father’s Affidavit, paras 19-21.
The person with whom the Mother has commenced a relationship[65] has contacted the Father on his home and mobile telephone numbers and been abusive to him.[66] Evidently this was of no concern to the Mother, who when apprised of the situation, acknowledged her new relationship, but said that if the Mother’s New Friend had been abusive to the Father any complaint concerning that conduct ought not be directed to her but to the Mother’s New Friend. There is an air of practical unreality about that response, and it raises possible concerns about the degree to which the Mother might be able to deal with the Mother’s New Friend, particularly in any relationship with the Children. There is no real evidence of the nature of the Mother’s New Friend’s relationship with the Children.
[65] ‘Mother’s New Friend”
[66] Father’s Affidavit, annexure O at para 9
The Mother’s New Friend stays with her for two or three nights a week.[67]
Parental facilitation and encouragement of a close and continuing relationship between Children and other parent – section 60CC(3)(c)
[67] Transcript at 20.
The Father asserts that he will not consent to the Children being enrolled in schools in Uxxx.[68] The “blunt instrument” approach inherent in such a statement assumes that the Father will have a choice which he may not once orders are made in this matter. It also reveals that the Father’s approach to facilitating and encouraging a close and continuing relationship between the Children and the Mother may be less than proper, and the source of some difficulty in the relationship. However, that is in response to the Mother who has made it clear that that she is simply going to do what she wants to do, notwithstanding the terms of the Gosford local Court Orders, which she understands.[69]
[68] Father’s Affidavit, para 17.6.
[69] Transcript at 23.
The Mother has however not facilitated or encouraged a close and continuing relationship between the Children or the other parent. There are a number of indicators of this:
a)her unilateral relocations to places some distance from the father which makes it difficult for him to pick up the Children and spend time with them;[70]
b)her refusal to make the Children available for time to be spent with the Father – such as on the weekend of 25-27 May 2007 and several subsequent weekends on which the Father ought to have spent time with the Children,[71] and a weekend in lieu of the weekend of 17-19 August 2007;[72]
c)her failure to simply tell the Father of her new address in Uxxx when he spoke to her a day after she had moved; and
d)sending the children to schools without agreement from the Father.[73]
[70] See paras 47-50 above; Transcript at 18-20.
[71] Transcript at 20-21.
[72] Transcript at 21.
[73] Transcript at 24.
Likely effect of changes in Children’s circumstances – section 60CC(3)(d)
There was no evidence of the likely effect of the changes in the Children’s circumstances per se. However, the Court considers that the Children would be more settled and better cared for overall if they lived with their Father, and in the longer term this would overcome any short term dislocation caused by changes in living arrangements (bearing in mind the Children have always lived with their Mother), schools and communities.
Practical difficulty and expense of Children spending time and communicating with parents – section 60CC(3)(e)
There can be no doubt that the Mother’s move to Uxxx in May 2007 compromised the Father’s ability to spend time with the Children,[74] means that he sees them less regularly,[75] and made it harder for him to travel to see the Children.[76]
[74] Father’s Affidavit, paras 19-25, 28, 28A and 28C; and also, for example, Mother’s Second 5 July Affidavit, paras 13-14.
[75] Transcript at 18.
[76] Transcript at 18.
There were throughout 2006-2007 ongoing transport difficulties for both parents, with both at various times seemingly reliant on public transport.[77]
[77] Father’s Affidavit, annexures O at para 5 and R at para 2; Mother’s Second 5 July Affidavit, para 15.
The Father has epilepsy and this has restricted his ability to drive, both at all for periods, or for long distances, as he feels it is unsafe for him to drive long distances, especially with the children in the car.[78] In this regard the Father has, from time to time, been able to be assisted by his New Wife driving him to pick up and drop off the Children for time spent.[79]
[78] Father’s Affidavit, paras 13.1-13.4 and annexures C, D1 and D2.
[79] See para 56 above.
Telephone communication ought not to be a difficulty, but there is evidence that there have been difficulties with the existing daily telephone contact.
Capacity to provide for the needs of the Children – section 60CC(3)(f)
The Father has a rented three bedroom house in Axxx on the New South Wales central coast.[80] Each of the Children has their own bedroom in the house.[81]
[80] Father’s Affidavit, para 29; New Wife’s Affidavit, para 4.
[81] Father’s Affidavit, para 37.
The Axxx house is in close proximity to schools, shops and playgrounds.[82]
[82] New Wife’s Affidavit, para 4 and (first) para 5.
The Father is a registered nurse who has the capacity to work part-time so that he is available to care for the Children,[83] and he has the capacity to carry out the relevant domestic work necessary to run the home.[84] The Father is able to call on the assistance of his New Wife and his parents when caring for the Children.[85]
[83] Father’s Affidavit, paras 33 and 34.1-34.3.
[84] Father’s Affidavit, para 39.
[85] In that regard see para 56 above.
The Mother claims that since separation the Children “have been getting themselves up in the morning, getting their own breakfasts and dressing themselves and they require no assistance from [the Father or the new Wife]”.[86] Given that the Children were, at the time that statement was sworn by the Mother, just six and three going on four, and the separation was at least twenty-one months beforehand, the Mother’s statement is indicative of little children not cared for, but left to their own devices, and the statement is quite incredible, for it says that the Children when aged four and two were getting up and making their own breakfasts! To then suggest that the Children when spending time withy the Father and New Wife require no assistance in these tasks is also incredible and reveals a lot about the laxity of the Mother’s attitude to parent responsibilities and the lack of provision for the needs of the Children when in the Mother’s care.
[86] Mother’s 14 September Affidavit, para 41.
The Father has epilepsy, controlled by medication, and apart from the driving difficulties referred to above, [87] the epilepsy does not appear to impede the Father’s ability to provide for the needs of the Children.[88]
[87] See para 68 above.
[88] And compare Shelter & Shelter [2007] FMCAfam 898 at paras 23-24 per Lucev FM.
The Father has private medical insurance for the Children.[89]
[89] Father’s Affidavit, para 17.6(g).
The Mother does not work.[90]
[90] Mother’s Second 5 July Affidavit, para 25.
The Mother has a rented three bedroom house in Uxxx in New South Wales, and each of the Children has their own bedroom in the house.[91]
[91] Mother’s Second 5 July Affidavit, para 26.
The Youngest Child has, on the unchallenged evidence of the New Wife, “some issues with speech development, toileting and fine motor skills” and that his speech needs professional assistance.[92] It is common ground that there has been some improvement in the Youngest Child’s speech recently. It appears that the Mother, whilst recognising that there is an issue refuses to deal with the issue,[93] which entails the Youngest Child being very difficult to understand when he speaks.[94]
[92] New Wife’s Affidavit, para 11.
[93] New Wife’s Affidavit, para 11; Mother’s Second 5 July Affidavit, para 9.
[94] New Wife’s Affidavit, para 11.
The Children have been enrolled in school and pre-school in Uxxx, with the Oldest Child attending school and the Youngest Child on a pre-school waiting list.[95] The Mother says that the Oldest Child is “well settled” at school.[96]
[95] Mother’s Second 5 July Affidavit, paras 18 and 20.
[96] Mother’s Second 5 July Affidavit, para 20.
Maturity, sex, lifestyle and background of Children and Parents – section 60CC(3)(g)
The Father seems, on the whole of the evidence, to be more mature and to have a more settled lifestyle than the Mother.
Aboriginal and Torres Strait Islander Children – section 60CC(3)(h)
Not applicable in this case.
Attitude to the Children and parental responsibilities – section 60CC(3)(i), (4) and (4A)
The Father evinced a serious and concerned attitude towards the Children and towards his parental responsibilities, save only for his somewhat impractical intransigence in relation to the enrolling the Children at schools in Uxxx. He is cognisant of his responsibilities to the Children, and of the impact of his epilepsy in relation to the care of the Children.
By contrast the Mother in her evidence was at times casual and flippant, seeming not to care about the answers she gave or their effect or the impression they created. In some ways this reflects some of the evidence concerning her forgetting a doctor’s appointment for the Children[97] or indicating that she did not want to take the Youngest Child to a speech therapist because she could not afford it.[98] It is also consistent with her unilateral relocations without consultation with the Father to places where it is difficult for him to travel to.[99] The Mother acknowledges that her actions in this regard have impacted adversely upon the Children who miss their Father.[100]
[97] Father’s Affidavit, para 17.9.
[98] Father’s Affidavit, para 17.6(g).
[99] See paras 47-51 above; transcript at 19.
[100] Transcript at 19-20.
A day after the move to Uxxx the Mother refused to disclose her new address to the Father.[101] This is another example of her foolish and unhelpful attitude toward her parental responsibilities.
[101] Mother’s First 5 July Affidavit, para 35.
In summary it seems that the Mother has, as was put to her in cross-examination, decided that, notwithstanding the terms of the Gosford Local Court orders and her understanding of what they entail, simply decides to do what she wants to do irrespective of her parental responsibilities.[102]
Family Violence or Family Violence Orders involving the Children or a member of the family– section 60CC(3)(j) and (k)
[102] Transcript at 23.
The Father took out an Apprehended Violence Order against Mother’s New Friend as a consequence of telephone threats from the Mother’s New Friend to the Father including a spoken threat “to slit your [the Father’s] throat and rip your spine out you dirty cunt” and a text message saying “now your dead cunt”.[103]
[103] Father’s Affidavit, paras 50 and 51.
The Father’s New Wife has taken out an Apprehended Violence Order against the Mother as a consequence of an assault by the Mother on the New Wife in the presence of the father and the Children on 8 August 2006.[104]
[104] Father’s Affidavit, para 55 and annexures X and Y.
Given the above facts and the Mother’s New Friend’s criminal history, including a 1998 conviction for sexual assault on a person under 16 and a suspension from driving a motor vehicle until 2040, and a forthcoming high range PCA (drink driving) offence it is little wonder it was conceded that his “track record is not a good one.”[105] Moreover, despite an affidavit being filed by the Mother’s New Friend, it was not relied upon, and the Court is entitled to draw an adverse inference from the fact that he was not called and that the failure to call him was unexplained. The Court has come to the view that there is a risk that the Children will be exposed to family violence from the Mother’s New Friend if they live with the Mother.
[105] Transcript at 40.
The Mother acknowledged the seriousness of the situation, and the fact that her New Friend is not a fit and proper person to spend time with the Children, by proffering through Counsel an undertaking that there would not be contact between the Children and the Mother’s New Friend. Given the Mother’s track record of suiting herself[106] the Court has severe doubts about an undertaking proffered in that way after she had given her evidence,[107] and particularly so when she lives in a relatively small community in seemingly close proximity to her New Friend. Nevertheless, there should be no contact between the Mother’s new Friend and the Children.
[106] Transcript at 23.
[107] Transcript at 41.
Order less likely to lead to further proceedings – section 60CC(3)(l)
In the Court’s view the order less likely to lead to further proceedings is an order which see the Children living with the Father and spending time with the Mother.
Consideration
The Court, on a consideration of all the evidence considers that the Children’s best interests would be served by living with their Father because:
a)this will result in a more meaningful relationship overall with both parents;
b)there will be less risk of harm to the Children;
c)the Father has better support mechanisms amongst other persons to allow him to properly care for the Children, and as a registered nurse he is in a better position to deal with the health issues the Children have;
d)the Father is better able to meet the needs of the Children; and
e)the practical difficulties with communication, transport and changeovers and other issues between the parents are, in the Court’s view, likely to be lessened, in part because of the Father’s more mature approach.
There will therefore be an order that the Children live with the Father and spend time with the Mother. Given the geographical distance between the parents the live with-time spent orders will provide for the Children to see the Mother every second weekend and for half of the school holidays. These orders will be way of discharge of existing Gosford Local Court Orders and the making of new orders by this Court (with those orders not discharged continuing to operate).
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate:
Date: 3 March 2008
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