Alton and Alton
[2013] FCCA 1744
•5 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALTON & ALTON | [2013] FCCA 1744 |
| Catchwords: FAMILY LAW – Children – Parenting Orders – interim orders – parental responsibility – equal shared parental responsibility – best interests of the child – one child aged six years – whether equal time with each parent is in child’s best interests – whether equal time with each parent is reasonably practicable – substantial and significant time – whether substantial and significant time is in child’s best interests – whether substantial and significant time is reasonably practicable – interim orders made after Family Report made available. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 65Y |
| Goode & Goode [2006] FamCA 1346; (2006) 26 Fam LR 422; FLC 93-286 Hall & Hall (1979) 5 Fam LR 609; FLC 90-713 |
| Applicant: | MS ALTON |
| Respondent: | MR ALTON |
| File Number: | SYC 85 of 2013 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 21 October 2013 |
| Date of Last Submission: | 21 October 2013 |
| Delivered at: | Sydney |
| Delivered on: | 5 November 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Self-represented |
| Solicitors for the Respondent: | Christopher Mackay Lawyer |
ORDERS
The Orders made by consent on 4 April 2013 are discharged.
UNTIL FURTHER ORDER
The Mother and Father are to have equal shared parental responsibility for the child of the marriage X born (omitted) 2007.
The child X is to live with the Mother.
Between Wednesday 11 December 2013 and the first day that the child X is required to attend school at the commencement of Term 4 in 2014 the child will spend time with the Father as follows:
(a)During the school term:
(i)In the first week of each fortnight from immediately after school on Friday until the commencement of school on the following Monday morning; and
(ii)In the second week of each fortnight from immediately after school on Thursday until the commencement of school on Friday;
(iii)On the child’s birthday from immediately after school until 6:30 pm;
(iv)On the Father’s birthday from immediately after school until 6:30 pm; and
(v)At such other times as the parties may agree.
(vi)In the event that Mother’s Day falls on a weekend when X would normally be spending time with the Father in accordance with these Orders, the Father’s time with the child is to cease at 5:00 pm on the Saturday immediately before Mother’s Day and he is to make the child available for collection by the Mother;
(vii)In the event that Father’s Day falls on a weekend when X would normally be in the care of the Mother in accordance with these Orders, then the Mother is to make the child available for collection by the Father at 5:00 pm on the Saturday immediately before Father’s Day and the child is to spend time with the Father until the commencement of school on the Monday morning immediately after Father’s Day.
(b)During the Christmas/January school holidays as follows:
(i)From 9:00 am on Wednesday 18 December until 1:00 pm on Christmas Day;
(ii)From 9:00 am on New Year’s Day until 9:00 am on Wednesday 8 January 2014;
(iii)From 9:00 am on Wednesday 15 January until 9:00 am on 22 January 2014;
(iv)From 9:00 am on 29 January until 8:30 am on Monday 3 February 2014;
(c)During the school holidays at the end of Term 1 from 22 April 2014 until the commencement of school on Tuesday 29 April 2014;
(d)For the school holidays at the end of Term 2 in 2014 from 9:00 am on Saturday 28 June until 5:00 pm on Saturday 5 July and from 9:00 am on Saturday 12 July until 5:00 pm on Saturday 19 July 2014; and
(e)For the school holidays at the end of Term 3 in 2014 from 9:00 am on Saturday 27 September until 5:00 pm on Saturday 4 October 2014; and
(f)At such other times as the parties may agree.
From and after the first day that the child X is required to attend school at the commencement of Term 4 in 2014 the child will spend time with the Father as follows:
(a)During the school term:
(i)In the first week of each fortnight from immediately after school on Friday until the commencement of school on the following Tuesday irrespective of whether the Monday of that week is a public holiday or not; and
(ii)In the second week of each fortnight from immediately after school on Thursday until the commencement of school on Friday;
(iii)On the child’s birthday from immediately after school until 6:30 pm; and
(iv)On the Father’s birthday from immediately after school until 6:30 pm; and
(v)At such other times as the parties may agree.
(vi)In the even that Mother’s Day falls on a weekend when X would normally be spending time with the Father in accordance with these orders, the Father’s time with the child is to cease at 5:00 pm on the Saturday immediately before Mother’s Day and he is to make the child available for collection by the Mother; and
(vii)In the event that Father’s Day falls on a weekend when X would normally be in the care of the Mother according to these Orders, then the Mother is to make the child available for collection by the Father at 5:00 pm on the Saturday immediately before Father’s Day and the child is to spend time with the Father until the commencement of school on the Monday morning immediately after Father’s Day.
(b)During the Christmas/January school holidays:
(i)From 1:00 pm on Christmas Day until 6:30 pm on Boxing Day in 2014 and all even-numbered years thereafter;
(ii)From 9:00 am on Christmas Eve until 1:00 pm on Christmas Day in 2015 and all odd-numbered years thereafter;
(iii)From 9:00 am on 5 January until 6:30 pm on 26 January in each year;
(c)During the school holidays at the end of Term 1, Term 2 and Term 3 in each year, for half of each school holiday period, being the first half in 2015 and all odd-numbered years thereafter and the second half in 2016 and all even-numbered years thereafter;
(d)At such other times as the parties may agree.
For the purpose of giving effect to these Orders, changeover between the parties will take place at the child’s school on all occasions when the child’s time with the Father commences immediately after school and concludes at the commencement of school and all other times the parent receiving the child into his or her care will be responsible for collecting the child from the residence of the other parent.
Each parent must do all things necessary to facilitate telephone contact between the child X at all reasonable times when she wishes to speak to the other parent on the telephone.
Neither parent is to interrupt or restrict telephone calls, emails or other forms of electronic communication between X and the other parent.
Each parent must allow the child to speak to the other parent by telephone in privacy without interruption.
The Mother is permitted to remove the child X born (omitted) 2007 from Australia for the purposes of a holiday in (country omitted) between 12 April and 22 April 2014.
Whilst the child X is out of Australia in accordance with the above Order the Mother is to arrange for her to telephone the father on no fewer than two (2) occasions.
Either parent may arrange to take the child X born (omitted) 2007 out of Australia for the purposes of a holiday on the following conditions:
(a)The parent proposing to travel with the child is to provide notification to the other parent two (2) months prior to the date of the proposed departure including:
(i)The proposed destination or destinations;
(ii)A written itinerary including dates of travel, flight numbers and times;
(iii)Contact details at all places where the child will be staying including telephone number, email address and postal address;
(b)The Mother is to retain the child’s passport which she must provide to the Father no later than seven (7) days prior to the proposed date of departure;
(c)The Father must return the child’s passport to the Mother no later than seven (7) days after he returns to Australia with the child;
(d)Both parties must do all acts and things and sign all necessary to allow the issue of a new passport for the child; and
(e)Neither parent is to remove the child from Australia for the purpose of a holiday or retain her out of Australia on a day when the child would normally be required to attend school.
The parties are restrained by injunction from:
(a)Denigrating or criticising the other party in the presence or hearing of the child X or permitting any third party to do so; and
(b)Discussing these proceedings with the child.
The parties are to advise each other as soon as reasonably practicable of any illness or injury or any other medical emergency sustained by the child whilst she is in their respective care under these Orders.
Each party is at liberty to attend any school function, parent teacher interview or sporting event involving the child to which parents are normally invited to attend.
Each party is at liberty to receive copies of all school reports relating to the child and any school bulletins, newsletters, information about school photographs or other material normally sent to parents of children attending the child’s school.
Each party must ensure that his or her name and contact details are placed on file at the child’s school for use in case of emergency.
IT IS NOTED that publication of this judgment under the pseudonym Alton & Alton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 85 of 2013
| MS ALTON |
Applicant
And
| MR ALTON |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application for interim parenting orders relating to the parties’ daughter X, who is six years of age.
The father, who is the Respondent to the substantive Application, seeks to discharge the Interim Orders made by consent on 4 April 2013 and substitute a suite of fresh interim Orders.
The mother opposes the Orders sought by the father and herself seeks fresh parenting Orders
Background
The parties were married on (omitted) 2006 and separated on 14 April 2012. They were divorced by Order of this Court on 13 June 2013.
There is one child of the marriage, X, who was born on (omitted) 2007. She lives with the mother and spends time with the father in accordance with Interim Orders made by consent on 4 April 2013.
The father has formed a new relationship with a woman named Ms S, with whom he has resided since 25 January 2013. Ms S has a son aged seven.
The mother commenced proceedings in this Court by filing an Application for parenting orders on 10 January 2013, which was returnable on 18 March.
The father filed a Response on 4 February 2013, in which he sought that the parties have equal shared parental responsibility for their daughter but also that she should spend equal time with her parents on a week-about basis.
On 26 March 2013 the parties attended a Child Dispute Conference with a Family Consultant. In her Memorandum to the Court, the Family Consultant noted an agreement between the parties:
On an interim basis, the parents agree that X will live with the mother and spend time with the father as follows: in week one from after school Friday to the commencement of school Monday; and in week two for two to three to four hours (on one day). This arrangement will commence the weekend beginning 24 May 2013.[1]
[1] Family Consultant Memorandum to Court 26 March 2013
The question of an equal time arrangement remained an issue between the parents.
On 4 April 2013 the parties entered into Interim Consent Orders which provided:
1. That the parties have equal shared parental responsibility for X born (omitted) 2007 (“X”).
2. That X shall live with the Mother.
3. That X shall spend time with the Father as follows:
(a) during the school term on a two weekly cycle as follows:
(i) in Week one from after school Friday until before school Monday, such time to commence on 10 May 2013;
(ii) in Week two from after school Friday for a period of 3-4 hours as agreed between the parties one week in advance, such time to commence on 3 May 2013;
(b) during the April school holidays as follows:
(i) from after school Friday 12 April 2013 until 9.30 am 15 April 2013;
(ii) From Monday 22 April 2013 at 9.00 am until Monday 29 April 2013 at 9.00 am.
4. That each party will use their best endeavours to personally collect X from school when X is in their care.
5. That the Father will provide (omitted) Prep School with his partner’s contact details.
6. That for a period of two months the Father will provide the Mother with copies of his flight records for any domestic travel on the first day of each month for all travel in the proceeding[2] month.
7. That the Father’s time with X be suspended on Sunday 12 May 2013 from 10:00 am until before school Monday.
[2] sic
The parties and the child attended interviews with a Family Consultant for the purposes of a Family Report under the provisions of s.62G of the Family Law Act 1975 (Cth) in July 2013. The Family Consultant also spoke to the father on the telephone on 19 August. The Family Report was completed on 26 August 2013 and released to the parties on 3 September 2013.
On that same date, at the request of the parties, the Application was listed for interim hearing on 21 October 2013.
The Family Consultant provided an Addendum to the Family Report on 21 October 2013, clarifying an error in the Family Consultant’s recommendations.
Evidence
The father relied on his affidavit affirmed on 4 October 2013. Annexed to his affidavit is a schedule of the interim orders that he seeks. In support of his case, he tendered a copy of a letter to him dated 18 October 2013, confirming the termination of his employment as of that date.
The father, in his affidavit, seeks to challenge a number of matters in the Family Report, both as to factual information provided by the mother to the Family Consultant and as to the recommendations made in the Report.
The father asserts that:
a)The mother’s three brothers “are regular illegal drug users and keep illegal drugs on their premises”;[3]
b)The mother’s mother is an alcoholic who refused to accept the fact or “attend any rehabilitation therapy”.[4]
[3] Affidavit of Mr Alton 4.10.2013 at paragraph [4]
[4] Ibid
The father denies that:
a)He was “very jealous and mistrustful” during the relationship;[5]
b)He would “manipulate her (the mother) so that she would not attend social functions”;[6]
c)He threw his wedding ring away “in anger” – he states that he was “upset, not angry” when he threw the ring away;[7]
d)He raised his voice or threw a coffee table into a fireplace on the occasion when he agreed to move out of the matrimonial home.[8]
[5] Ibid at [5]
[6] Ibid
[7] Ibid at [6]
[8] Ibid at [7]
The father deposed that the mother had asked the police at (omitted) in Victoria to issue an Intervention Order against him. When the parties attended Court at Frankston the mother said that to the Court that she did not require an Intervention Order and he signed an undertaking “not to commit family violence towards Ms Alton.[9]
[9] Ibid
The father also denied the mother’s claims that he had sought to “control and isolate” her from her family[10] or that the child had ever been exposed to conflict between the father of Ms S’s child A.[11]
[10] Affidavit of Mr Alton 4.10.2013 at [9]
[11] Ibid at [9]
The father asserts in his affidavit that the child has spent week about time with her mother and himself during the school holidays since the end of 2012, apparently without ill effect. The seven year old son of his partner also spends equal time between her and his father, and the two children have spoken about this arrangement.[12]
[12] Ibid at [10]
The father asserts that the child has a close relationship with both of her parents and has also developed “a very close relationship” with his partner and her son.[13]
[13] Ibid
It is the father’s view that he and the mother have been able to discuss and agree on matters such as the child’s school, medical and a non-binding parenting arrangement into which they entered in June 2012. He also refers to the fact that he and the mother were able to sit down with the child after the Interim Consent Orders were made on 4 April 2013 and explain to her how the arrangements would work.
The father expresses the belief that his relationship with Ms S has led to the “discord” between them and explains why the mother commenced proceedings in this Court.[14]
[14] Ibid at [14]
As to his relationship, the father deposes:
I have been in a stable relationship with Ms S for over 12 months without any anger management issues and we are now engaged and plan to get married in (omitted) 2014.[15]
[15] Ibid at [13]
The mother relied on her affidavit sworn 16 October 2013. Her counsel, Ms Reynolds, tendered a copy of the transcript of the proceedings on the first return date, 18 March 2013.
In her affidavit of 16 October 2013, the mother states that she opposes the father’s application to set aside the Orders made on 4 April 2013 except to have new orders made in accordance with those set out in Annexure “A” of her affidavit. Whilst much of her affidavit appears to be drafted in answer to the father’s earlier affidavits or commenting on the fact that, at the time she swore the affidavit the father was still travelling between Sydney, Melbourne and (omitted) in the course of his employment, the mother has some views as to why she does not consider the father’s proposed changes to the parenting arrangements to be in the child’s best interests.
It is the mother’s evidence that:
a)The child appears to be overtired when she returns to her care after having spent three nights with her father;[16]
b)The child appears to be “clingy” when she returns to her care and follows her around the house;[17] and
c)The child’s behaviour is demanding, restless and agitated when she returns to her mother’s care.[18]
[16] Affidavit of Ms Alton 16.10.2013 at paragraph [26]
[17] Ibid
[18] Ibid
The mother does not agree with the father’s proposal that if either parent is unable to care for the child for more than two hours on a weekend then the other parent should have first option to care for her, describing it as “intrusive”.[19]
[19] Ibid at [27]
The mother also takes issue with the father’s proposal for alternating weeks during the school holidays, not in principle but because she sees the proposed starting and finishing times on a Monday as impractical. She also expresses doubt about the father’s future availability to care for the child for seven weeks of the fourteen weeks of the school holidays in each year, because of his work commitments.[20]
[20] Ibid at [28]
The mother deposes that she wishes to take the child to (country omitted) from 12 to 22 April 2014 and states that she would agree to the father having “make up time” of two nights in another school holiday period to compensate for the fact that she would have the child in her care for 11 nights out of the 18 nights of the school holiday period during which the trip to (country omitted) would take place.
The Family Report
The parties and X attended upon a Family Consultant, Ms T, for the purpose of preparation of a Family Report. The report was released to the parties on 3 September 2013. An Addendum to correct an error in the Report was released to the parties on 21 October.
For the purposes of the Family Report, the Family Consultant interviewed both parents and the child. She then observed the child with each parent.
The father’s fiancée, Ms S, did not attend the interview, as the Family Consultant stated:
It is noted that the report is limited by Ms S’s non-attendance for the interview.[21]
[21] Family Report page 3
The Family Consultant noted the mother’s proposal that the current parenting arrangement should remain in place and the father’s proposal that X should live with each parent in a week about arrangement.
The Report identifies four issues between the parties, being:
a)Family violence;
b)Parental conflict;
c)Poor parental relationship; and
d)Cultural issues[22].
[22] The mother’s father is of (omitted) descent
Whilst the mother told the Family Consultant that the parenting arrangements under the Consent Orders of 4 April 2013 had not gone “particularly well” due to X’s “exhaustion” when she has returned from her father’s care and her arriving at school either late or just on time,[23] she conceded that the father and the child have a close relationship:
Ms Alton said that Mr Alton and X have a close relationship and she believes that Mr Alton “adores” X and is a “great Dad” to her. She believes that the current arrangement is “ample” for X and that whilst she appreciates that X needs her father in her life, she does not want X exposed to more exhaustion and instability than is necessary.[24]
[23] Family Report page 8 paragraph [22]
[24] Ibid at [23]
The father told the Family Consultant that:
…he and X have a great time together but that she is sad and tearful when she goes back to her mother’s house. He believes that X gets a lot of pressure from her mother about where she should spend her time.[25]
[25] Ibid at [31]
The Family Consultant described the child as “a bright and cheerful little girl”[26] who wanted her parents to live together again. As to her wishes:
X said that she wishes that she can “have one week with Mum and one week with Dad” because that way she would get to spend “a little bit of time with Mum and a little bit of time with Dad”. She indicated that she enjoys spending time with both parents and did not note any concerns about being in either parent’s care. Her father appears to attend to her day to day needs such as bathing her and putting her to sleep when she is in his care.[27]
[26] Ibid at [33]
[27] Ibid at [35]
The child told the Family Consultant that she enjoyed spending time with Ms S and her son but she also gets to spend time with her father alone.
The Family Consultant stated that:
Observations of X and each parent were positive and appropriate.[28]
[28] Ibid at [38]
In my view, the following paragraphs appear to provide the reasons for the Family Consultant’s recommendations:
44. The current arrangement does not appear to meet X’s developmental needs. Ms Alton’s proposal to maintain the current arrangement is restrictive. It does not allow X the benefit of having both her parents meaningfully involved in her life and demonstrates a covert lack of enthusiasm about X’s relationship with her father. It is important, and in X’s best interests, that she have the opportunity to spend substantial and significant time with her father, including weekends and weekdays, in order to strengthen and maintain her positive relationship with him.
45. In this matter, there are reservations about the implementation of an equal time arrangement, including: X’s age and developmental stage and the difficulty in predicting how she would cope with such a substantial change from the current arrangement (any changes in the parenting arrangement will in fact require an incremental increase); the allegations of family violence; and the lack of parental co-operation and communication needed to ensure that X is not burdened by the difficulties in the parental relationship.[29]
[29] Family Report pages 16-17 at [44]-[45]
The Family Consultant made these recommendations in her Addendum of 21 October 2013:
1. It is recommended that the parents have equal shared parental responsibility of X.
2. It is recommended that X live with the mother.
3. It is recommended that X spend some time with the father as follows:
·To commence in January 2014 and once Mr Alton is based in Sydney on a full time basis,
·In week one from after school Friday to before school Monday; and in week two from after school Thursday to Friday 6:30 pm
·To commence once X attains the age of seven,
·In week one from after school Friday to before school Monday; and in week two from after school Wednesday to Friday 6:30 pm
4. It is recommended that Mr Alton attend and complete an anger management course (eight sessions) prior to any changes in the parenting arrangement.
5. It is recommended that Mr and Ms Alton complete a parenting after separation course.
Orders Sought
The interim orders sought by the father are set out in Annexure 1 to his affidavit of 4 October 2013. They are:
1. That the orders made on 4 April 2013 by consent pursuant to Minutes of Consent admitted into evidence and marked Exhibit are set aside.
2. That the mother and father shall have Equal Shared Parental Responsibility for X born (omitted) 2007 (“X”).
3. That, subject to Orders 5 and 6, X shall live with the Mother during school term on a two weekly cycle in week one from after school Monday until before school on Thursday, of week two.
4. That, subject to Orders 5 and 6, X shall live with the Father during school term on a two weekly cycle in week two from after school Thursday until before school Monday, of week one.
5. That in the event that either parent is unable to personally care for X on the Saturday or Sunday of their respective week, for a period of more than 2 hours, the other parent shall have the first option to care for X.
6. That in the event either parent is unable to personally collect X from school and provide for afterschool care, the other parent shall have first option to collect X from school and provide for the afterschool care.
7. That during the school holidays X shall, on the two weekly cycle, live with the:
a. Mother in week one from Monday 9am until Monday 9am, week two;
b. Father in week two from Monday 9am until Monday 9am, week one.
Unless otherwise agreed between the parties in writing.
8. That during all handovers between the parties the parent receiving X into their care be responsible for collecting X from the other parent’s residence.
9. That the Mother and Father provide all email, text and video messages received from the other party for X to X.
10. That X is placed in a private room, free from interruption, during any phone calls with the Mother or Father, including the Father’s partner (Ms S) and her son (A), while in the other parent’s care.
11. That a joint and up to dated medical consultation relating to X be maintained between Dr J and Dr Z.
12. That the parties keep each other informed as a priority of any:
a. serious medical emergencies, problems or illnesses suffered by X.
b. medication that has been prescribed by a medical practitioner for X.
13. That in relation to overseas travel with X:
a. the parties provide notification, which shall include a minimum the proposed destination/s and dates of trave, at least 1 month prior to departure.
b. the parties will provide the required written consent for any overseas travel within 7 days of the notification.
c. X’s passport be kept by the Mother and provided to the Father within 7 days of the notification for overseas travel being made.
d. If X requires a new passport, the parties shall do all acts and things including signing all necessary documents so as to complete any passport application required to allow X to travel internationally and the party requesting the passport application be signed shall provide the other party with a passport application and return it to the requesting party within 7 days.
14. That the Mother and Father and each of them be restrained by injunction from:
a. speaking in any denigrating or demeaning way about the other parent in the presence or hearing of X;
b. harassing the other parent through telephone, text message or emails;
c. not respecting the other party’s privacy;
d. interrupting or restricting phone calls, emails or video messages between X and the other parent;
e. taking X out of school during school term for holidays, without the prior written consent of the other parent;
f. making any changes or decisions in relation to X’s current education, without the prior written consent of the other parent.
g. discussing the family law proceedings with the child.
Counsel for the mother tendered a document entitled “Short Minute of Orders Sought by the Mother”. The mother seeks the following orders:
1. Orders 1, 3, 4, 5, 6, 7, 10, 11, 13(a) and (b) and 14(d) and € of the Orders sought by the (applicant) father in the form annexure 1 to the father’s third “interim “ affidavit sworn 4 October 2013 be refused.
Pending further Order
2. The parties have equal shared parental responsibility for X born (omitted) 2007 (“X”).
3. X live with the mother.
4. X spend time with the father as follows:
(a) During the school term on a two weekly cycle as follows:
i. in week one from after school Friday until before school Monday;
ii. in week two from after school Friday until 6:30 pm;
(b) During the Christmas 2013/2014 school holidays as follows:
i. Wednesday 11/12/13 – 9am Wednesday 18/12/13 with mother;
ii. 9am Wednesday 18/12/13 – 1pm Wednesday (Christmas Day) 25/12/13 with father;
iii. 1pm Wednesday 25/12/13 – 9am Wednesday 1/1/14 with mother;
iv. 9am Wednesday 1/1/14 – 9am Wednesday 8/1/14 with father;
v. 9am Wednesday 8/1/14 – 9am Wednesday 15/1/14 with mother;
vi. 9am Wednesday 15/1/14 – 9am Wednesday 22/1/14 with father;
vii.9am Wednesday 22/1/14 – 9am Wednesday 29/1/14 with mother;
viii. 9am Wednesday 29/1/14 – 8.30 am Monday 3/2/14 with the father.
(c) During the Easter 2014 school holidays as follows:
i. with the mother from the commencement of the school holidays (Friday 11 April 2014) to Tuesday morning 22 April 2014;
ii. with the father from Tuesday morning 22 April 2014 to the commencement of school on Tuesday 29 April 2014.
(d) In subsequent school holidays, as agreed between the parties, but otherwise pursuant to a seven day sequence with the mother and then with the father (or vice versa) provided however in respect of Christmas 2014, the child shall be with the mother from 9am Christmas Eve to 1pm Christmas Day (and then with the father) and with the father from 9am Christmas Eve to 1pm Christmas Day (and then with the mother) and so on in subsequent years.
(e) Unless otherwise agreed, that during all handovers between the parties, the parent receiving X into his/her care be responsible for collecting X from the other parent’s residence.
Father’s Day/Mother’s Day
5. In the event that Mother’s Day falls on a weekend when X would ordinarily be with the father, he shall make X available for collection by the mother by 5pm on the evening before Mother’s Day and the child shall spend time with the mother until 5pm Mother’s Day.
6. In the event that Father’s Day falls on a weekend when X would ordinarily be with the mother, she shall make X available for collection by the father by 5pm on the evening before Father’s Day and the child shall spend time with the father until 5pm Father’s Day.
Telephone etc. contact
7. In respect of telephone contact by each of the parents with the child X:
(a) each parent shall facilitate telephone contact to other parent by X in the event that she wishes to speak to the other parent;
(b) neither parent shall interrupt or restrict phone calls, emails or video messages between X and the other parent provided that in respect of telephone calls by the father to X (while in the mother’s care), such telephone calls be restricted to no more than twice during the week and once on Sunday, for no more than 15 minutes duration and shall not be made after 6:45 pm.
(c) during any telephone call at a parent’s residence between X and the other parent, the parent with X shall, so far as reasonably possible, vacate the room or otherwise provide X with privacy to conduct the call.
Overseas Travel
8. The mother be permitted to remove the child from Australia to travel to (country omitted) and return between 12 and 22 April 2014.
9. That in relation to overseas travel with X:
(a) The party proposing travel provide notification to the other party of such proposal including as a minimum at least two months prior to the date of departure:
i. the proposed destination(s);
ii. itinerary, including dates of travel and return and airline details;
iii. contact details overseas;
(b) Any passport of the child be held by the mother to be provided to the father seven days prior to any overseas holiday with the child [in compliance with Section 65Y(2)] to be returned to the mother within seven days of the father’s return with the child.
(c) In the event that a new passport is required for the child X, the parties and each of them shall do all acts and things including signing all necessary documents to allow the issue of a new passport for the child.
Injunctions etc.
10. The mother and father and each of them be restrained by injunction from:
(a) speaking in any denigrating or demeaning way about the other parent in the presence or hearing of the child X;
(b) harassing the other parent through telephone, text messages or emails;
(c) not respecting the other parent’s privacy;
(d) discussing these Family Law proceedings with the child X;
11. NOTED for the avoidance of doubt, Order 10(b) will not restrict the parties communicating via email and/or text message in relation to the drop off or pick up of the child X or in relation to emergencies and health related matters associated with the child.
12. Forthwith upon Orders herein, the father:
(a) enrol in and complete a “Parenting After Separation” course;
(b) enrol in and complete an Anger Management Course (8 sessions).
The Law to be applied in Applications for Parenting Orders
Part VII of the Family Law Act 1975 (Cth) deals with matters relating to children. The objects of Part VII are set out in s. 60B(1) of the Act, providing for children’s best interests to be met. The principles underlying those objects are set out in s.60B(2) and include:
a)children’s right to know and be cared for by both their parents; and
b)children’s 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.
Section 60CA of the Act requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration. Section 60CC sets out the way that the Court determines what is in a child’s best interests, by having regard to the primary and additional considerations set out in subsections (2) and (3) respectively.
The Court is required by s.61DA of the Act to apply the presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. This presumption does not apply in cases of abuse or family violence and it may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for the child’s parents to have equal shared parental responsibility.
Where the Court does make an order providing for the child’s parents to have equal shared parental responsibility, the Court is then required by s.65DAA(1) to consider whether it is both in the child’s best interests and reasonably practicable for the child to spend equal time with each parent. If the Court does not make an order to that effect, it must then consider whether it is both in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent.
All of these matters have been considered, insofar as they are relevant.
Conclusions
Both of the parents seek an order that they should have equal shared parental responsibility for their daughter. Although the mother has raised allegations of family violence having occurred, on the evidence before the Court this would not of itself be sufficient to find under s.61DA(2) that equal shared parental responsibility should not apply. The allegations, which are to some extent denied, relate to the time when the parties were still together or in the process of separating, and it is not alleged that the father currently poses a threat to either the mother or the child.
Similarly, although the communication between the parties is not good, it is not claimed by either party that their communication is so poor that equal shared parental responsibility would not be in X’s best interests.
Again, these are interim proceedings, and subsection 61DA(3) provides that when the Court is making an interim order, the presumption of equal shared parental responsibility applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied.
In all the circumstances, I consider that the Court should order that the parties should have equal shared parental responsibility for X.
The Court must then consider the matters under subsection s.65DAA(1), whether it is in X’s best interests and whether it is reasonably practicable for her to spend equal time with each parent.
Neither parent seeks that arrangement on an interim basis, nor is it recommended by the Family Consultant.
The father seeks an Order that would have X living with her mother from after school on Monday of the first week of the fortnight until the commencement of school on the Thursday of the second week, a total of ten nights straight. Consequently, X would live with him from after school on Thursday of the second week of each fortnight until the following Monday morning, so that she would spend a straight four nights a fortnight with him. In effect, he is seeking that X should live with him for an extra night each fortnight.
The mother’s proposal, however, is that the child’s time with the father should remain unchanged, at three nights in one block and a period of three hours on the Friday afternoon of the other week.
The Family Consultant’s recommendation provides for the child’s time with the father to be increased, first of all to four nights a fortnight, in a block of three nights from Friday to Monday and another night the following week, on the Thursday night, with the child going back to her mother at 6:30 pm on the Friday, and then, when the child reaches the age of seven, for a further increase to five nights a fortnight in two blocks, with the extra night being on the Wednesday night of the second week.
Even though equal time with each parent is not proposed by either party or recommended by the Family Consultant, the Court is still required by s.65DAA(1) to consider it.
It does not appear that such an arrangement would not be reasonably practicable, noting that the parties now appear to live in the same suburb and the father is no longer required to travel interstate in the course of his employment. At this stage the father is no longer employed and would appear to have the time available to him to spend time caring for X.
However, reasonably practicability is not enough to justify the making of an equal time order. The Court must also be satisfied that such an arrangement would be in the child’s best interests.
The Court must regard the best interests of the child as the paramount consideration and, in doing so, consider the matters in s. 60CC.
The primary considerations are found in s.60CC(2). They 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.
Of those two primary considerations, the Court is required by s.60CC(2A) to give more weight to the latter.
I am not persuaded that the evidence, taken at its highest, is sufficient to establish that the child is at any serious risk of harm from being subjected or exposed to family violence. This said, these are interim proceedings where the parties have not given oral evidence subject to testing by cross-examination. As the Full Court of the Family Court said in Goode & Goode[30] at [68]:
…the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.
[30] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
There is no evidence of family violence by the father towards his fiancée or, currently, the mother, nor is the evidence that the child might be exposed to abusive emails from Ms S’s former partner to the father of such weight on its face that it raises any serious concern about the child’s welfare.
It is clearly of benefit to this little girl and in her best interests to have a meaningful relationship with both of her parents. This emerges clearly from the Family Report and it was conceded by the mother to the Family Consultant that father and daughter have a close relationship.
The Family Consultant did not consider that the mother’s proposal not to increase the amount of time that the father should spend with the child meets the child’s developmental needs and it does not “allow X the benefit of having both her parents meaningfully involved in her life…”[31]. Even so, the Family Consultant expressed reservations about the implementation of an equal time arrangement, having regard to the child’s age and stage of development and the difficulty of predicting the effect of such a substantial change in arrangements on the child.
[31] Family Report page 16 at [44]
The father has pointed to the fact that X told the Family Consultant that she would like to spend equal time with each parent in a week about arrangement, but the Family Consultant cautioned against putting a great deal of weight on the child’s expressed wish. True it is that a view expressed by the child is an additional consideration under s.60CC(3)(a), but the paragraph states that the Court should consider:
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.
The Family Consultant addresses this very point when she states:
It is not appropriate to place any significant weight on X’s views due to her age and developmental stage and because her views are expressed in the context of conflict between her parents of which she is aware.[32]
[32] Family Report page 16 at [43]
I am satisfied that little weight should be given to the child’s expressed view for the reasons stated by the Family Consultant. The child’s expressed view is, in my opinion, an indication of her positive feeling for each of her parents, but it should not be given any further weight than that.
In my view the evidence does not allow the Court to be satisfied that it is in the child’s best interests for her to spend equal time with each of her parents at this stage.
The Court is required by s.65DAA(2) to consider whether spending substantial and significant time with each of her parents is both in X’s best interests and reasonably practicable. She currently spends substantial and significant time with her mother.
For X to spend substantial and significant time with her father, the days that she spends with him would have to:
a)include both days that fall on weekends and holidays and days that do not;
b)allow her father to be involved in her daily routine and occasions and events that are of particular significance to her; and
c)allow her to be involved in occasions and events that are of special significance to her father (see s. 65DAA(3)).
The Family Consultant has expressed the view that the current arrangement is insufficient to meet X’s developmental needs and allow her the benefit of having both of her parents meaningfully involved in her life. This is why she has recommended an increase in the time the child spends with her father from three nights a fortnight to four initially, and then to five nights once the child attains the age of seven, which will be in September 2014.
It is clear from their submissions that neither party entirely agrees with the recommendations of the Family Consultant. The father’s proposal differs in some respects from the recommendation although the proposed number of nights with the child is the same, but the mother’s proposal involves maintaining the same amount of time with the father, which the Family Consultant does not consider to be adequate.
The Court is not bound to follow the recommendations in the Family Report, either (see Hall & Hall[33]) but a Family Report is intended to be, and usually is, a helpful and independent source of information to the Court. In my view, the Family Report should be given considerable weight, as it was completed only about six weeks ago.
[33] (1979) 5 Fam LR 609; FLC 90-713
As indicated at paragraph [61] above, reasonable practicability does not appear to be an obstacle to an order providing that this child should spend substantial and significant time with her father, noting the fact that the parties now live in the same suburb and the father currently does not have to travel interstate for work.
The Court needs to be satisfied that it would be in X’s best interests to spend substantial and significant time with her father, which would involve an increase in the time she spends with him during the school term, as the Family Consultant recommends.
I am of the view that it would be in the child’s best interests to spend more time with her father.
It is clear that X has a close and loving relationship with each of her parents and is comfortable in the care of either one of them. The father asserts that she has formed a close relationship with his fiancée, Ms S, although it is a curious omission in the father’s case that Ms S did not attend the interviews with the Family Consultant and has not sworn any affidavit in these proceedings.
The maternal grandparents did not attend the interview with the Family Consultant.
Each parent is taking the opportunity to participate in making long-term decisions about X, such as deciding on which school she is to attend, spending time with her and communicating with her.
Each parent appears to be fulfilling his or her obligation to maintain the child. The father is paying Child Support at the rate of $1,036.33 per month, which is collected by the Child Support Agency. He also pays the child’s school fees.[34] The mother is the child’s primary carer and works part-time.
[34] Affidavit of Ms Alton 16.10.2013 at [22]
There is no family violence order in force and I am not satisfied that the evidence shows that family violence is a concerning factor.
Orders to be made
The Orders to be made are interim Orders, as they follow an interim hearing. However, the Court has had the benefit of a recently-released Family Report and the father’s recent change of circumstances to do with his employment has been taken into account. The father’s long-term proposal for an equal time arrangement, as set out in his Response, has also been considered.
Whilst I am of the view that there needs to be a change in the parenting arrangements to allow more time with the father, as recommended by the Family Consultant, I am aware of the need to consider the likely effect on the child of any change to parenting arrangements (see s.60CC(3)(d)), which is a point made by the Family Consultant at paragraph [45] of the Family Report:
…the difficulty in predicting how she would cope with such a substantial change from the current arrangement (any changes in the parenting arrangement will in fact require an incremental increase);
As the current parenting arrangements have only been in force since early April, I consider that there should be no change until the child finishes the school year. There will then be an extra night with the father each fortnight during the school term and the parents can move to an arrangement where the child spends half the mid-year school holidays with each parent, except for the holiday time in April 2014 when the mother has plans to take the child to (country omitted).
The second stage of the process will involve an additional night with the father after the child attains the age of seven years, as the Family Consultant recommends. The change should take place at the beginning of the final school term in 2014, again, to give the child the chance to adapt.
Where possible, changeovers are to take place at school to avoid the need for the parents to meet face-to-face more often than is necessary.
It does not appear that the additional time with the father if it is phased in over a period of almost a year, will create too much disruption in the child’s life.
Some of the ancillary orders proposed by the parties do not seem to be practical or enforceable. The child should be allowed privacy in her telephone conversations with each parent, but the father’s proposal to place the child in a private room whenever she has a telephone call seems to be rather impractical.
Again, I am not sure how an order can be made requiring the parties to respect each other’s privacy, and there does not appear to be any affidavit evidence to support such an order, even if it were enforceable.
There does not appear to be any evidence to support an order restraining the parties from harassing each other by telephone, text messages or emails.
One issue that has already arisen is the father’s concern about taking the child out of school for a holiday. Whilst it is not too much of a problem at this stage of the child’s education it will become more and more of an issue as she gets older. An order will be made providing that the child should not be taken out of school for the purpose of a holiday.
Paragraph (l) of subsection 60CC(3) requires the Court to consider 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. These Orders are interim Orders, made after an interim hearing. However, they have been prepared as Orders that should meet the long-term best interests of the child rather than be a temporary stop-gap. The Orders have been prepared after consideration of the parties’ affidavits and a recent Family Report.
If the parties still wish to proceed to a final hearing in respect of this child, they will need to lead fresh evidence of matters that go to the best interests of the child, whether that is a change of circumstances or evidence that has not been previously brought before the Court. It will not be of any great assistance to this child for the parties to lead the same evidence at a final hearing. The parties should not expect the final hearing to be nothing more than a re-run of the evidence in the hope of a result that will be more to their liking.
The best interests of this child are, and will remain, the paramount consideration for the Court.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 5 November 2013