Ashforth and Ashforth

[2009] FamCA 1257

FAMILY COURT OF AUSTRALIA

ASHFORTH & ASHFORTH [2009] FamCA 1257

FAMILY LAW – CHILDREN – Parenting orders – very young child – husband has no relationship with child – how to start the relationship – Supervision of contact

Family Law Act 1975 (Cth)

APPLICANT: Mr Ashforth

RESPONDENT: Ms Ashforth

FILE NUMBER: MLC 9801 of 2009

DATE DELIVERED: 22 DECEMBER 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 22 DECEMBER 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR O'SHANNESSY

SOLICITOR FOR THE APPLICANT: KENNEDY WISEWOULDS

COUNSEL FOR THE RESPONDENT: MS JENKINS

SOLICITOR FOR THE RESPONDENT: NEWNHAMS

Orders

1. That until further order, the child E born … April 2009 live with the wife.

2. That the child spend time with the husband as follows:

   (a)on 23 December 2009, 24 December 2009, 26 December 2009, 28 December 2009 and 30 December 2009 for 1 hour and in default of agreement as to the time, from 10.00am until 11.00am (the short times);

   (b)on 1 to 7 January 2010 inclusive, for 2 hours on each day and in default of agreement from 10.00am until 12 noon; and

   (c)at such other times as agreed.

3. That the short times as specified in paragraph (2)(a) take place in the presence of the wife’s father, the maternal grandfather.

4. That the changeover of the child occur at the residence of …, S, or such other location nominated by the husband provided such location is no further than one half hour from the residence of the wife.

5. That the husband be restrained from removing the child from the Sydney metropolitan area during the time set out in paragraph (2)(a) and (b) hereof.

6. That until further order each party, MR ASHFORTH born … 1973 his servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child E born … April 2009 (female) from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until the Court orders its removal and that this paragraph be automatically discharged as and from midday on 9 January 2010.

7. That all outstanding applications be otherwise adjourned to the case assessment conference at 11.00am on 5 January 2010.

8. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Ashforth & Ashforth is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9801  of 2009

MR ASHFORTH

Applicant

And

MS ASHFORTH

Respondent

REASONS FOR JUDGMENT

1. This is a case about the child E who was born in April 2009. The child is almost 8 months old.

2. The child’s parents married in June 2008 and separated in May 2009.

3. The issue is what interim time should the child’s father spend with her over the Christmas period.

4. The child’s father normally resides in the United Kingdom and her mother is here is Australia.

5. The husband has spent virtually no time with the child since her birth. The child does not know him.

6. The husband is coming to Australia for the period from 19 December 2009 until 8 January 2010. He would like to spend time with the child.

7. The husband’s proposal was that he spend time on a daily basis for one hour, then two hours and eventually three hours during the period he is in Australia.

8. The wife’s proposal was that there should be alternate days and for a maximum of 1 hour and under the supervision of the paternal grandfather. In addition, she sought various injunctions including an injunction preventing the husband from taking the child out of Australia.

9. It would seem common ground that there is not a good relationship between the husband and wife and a strained relationship between the husband and the paternal grandfather.

10. All of this makes a decision difficult because there is no factual material that gives a clear indication of what is good for the child and I have no expert evidentiary assistance.

11. The husband’s position was that he was making the trip and albeit there would be no recognition of him by the child, he wanted to try and develop a relationship despite her age. He has to start somewhere.

12. The wife’s position is that the husband has no bond with the child, did not comply with her request to bring and hand over the child’s British passport and because of the nature of his work, she had some concerns about his psychological state. She is concerned that the nature of the husband’s proposal will be disruptive of the child’s routine.

13. All of the wife’s concerns can be answered.

14. First, the significant issue is to enable the husband to develop some attachment to the child such that she will have a memory of him in the future. It is well-known that the memory span of a baby is short and I suspect that if and when the husband returns in the future, he will face challenges because the child’s memory is most likely to have dimmed. In any event, there may be significant changes in the child’s life which may affect how she feels about separating from her primary attachment figure in her mother. It is important for the child therefore to have every chance to see her father now without that disrupting her attachment to her mother.

15. Secondly, the wife began inquiring about the child’s passport in late November but no clear demand was made for the passport to be secured. In a subsequent letter from the wife’s solicitor to the husband’s solicitor, the demand became more strident. Unfortunately, the husband was in the air when the letter was sent by ordinary mail. I would not find that there was anything sinister in the husband not having the passport with him.

16. I consider that the mother is entitled to some comfort in this environment and the limited injunction precluding the husband from removing the child from the Commonwealth is the answer. I stress that I would not find any current evidence of the husband being likely to remove the child but it is a relevant consideration to give the wife some comfort pending the possible resumption of some sort of trust between the parties.

17. Thirdly, although the wife raised concerns about the husband’s psychological state, it is really only supposition. Whilst I accept that the husband’s correspondence with the wife may be self-serving, it would certainly not indicate any ill-will. There is an air of excitement in the husband’s correspondence suggesting that he was keen to see the child.

18. I do not find any evidence of family violence that I could be satisfied should disqualify the husband from having time with the child.

19. Fourthly, the wife suggested that the husband’s proposal would disrupt the child’s routine. The husband, to his credit, conceded that the wife should have the Christmas Day period and the following Sunday which has been designated as the child’s Christening Day. The husband through his counsel said he did not want to disrupt those events. Each of those works reasonably well into an alternative day arrangement until after a few days when I think the child should be able to go unassisted with the husband. In the first days, it was suggested (and I agree) that the paternal grandfather should be present to give comfort to the child as he is a recognisable figure in her life. I also do not see any reason why the wife should not have the comfort of having her father present initially as well.

20. However, the success of the relationship between the husband and the child will depend upon the two men at least accommodating one another notwithstanding issues about the relationship of husband and wife. I point out that the husband and wife are not very young people and each has professional commitments and qualifications. Having said that, it would seem that the child is their only child and thus a precious part of both of their lives which requires them to put aside their differences for her sake.

21. The husband did not want to be supervised by the paternal grandfather but in my view, the issue should not be one that he should complain about because it will give him some added assistance in the care of the child.

22. At this child’s age, her attention span and period of being awake should guide the court in making a decision as to the prospect of her having any relationship with her father. Whilst the husband may want longer to be with the child, there is little in that for the child and importantly, longer periods than that which I propose could disrupt the child’s routine.

23. As it is, the parties (and in particular the husband) will need to be conscious of the fact that the child’s sleeping patterns and state of happiness will affect the success of the contact periods. Should either party stand on ceremony and not be prepared to fit around the child’s needs, it is a matter the court can consider when the case is ultimately heard.

24. To also give comfort to the wife, I propose to restrain the husband from leaving the Sydney environs with the child for no other reason than that would require travel which is not something that the husband has experience with in such a young child.

25. The jurisdiction to make orders of the type proposed is found in s 69H of the Family Law Act 1975 (Cth) (“the Act”).

26. Section 64B(2) provides various types of orders that a court can make when dealing with a parenting order. The orders I am proposing fall into those categories. In addition, the injunctive powers are found in s 68B of the Act. I am satisfied that it is appropriate and proper to make the orders in each of those areas.

27. It is important in cases involving very young children to consider the objects and principles of Part VII of the Act. In this child’s case, the legislature noted that an object of the Act was to ensure that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child. It is a principle underlying the objects that except when it would be contrary to a child’s best interests, a child has the right to know and be cared for by both parents and to spend time on a regular basis with, and communicate on a regular basis with, both parents. Even though the child is only a baby, it is still her right provided that is consistent with her best interests.

28. Section 60CA says:

    In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. 

29. Section 60CC sets out a number of considerations which have to be considered here but on the basis if the matters I have earlier set out, it is too early to make any findings about them. They are guiding principles and in this case because of the interim nature of the proceedings, it seems that the husband should be given the opportunity to participate in the child’s life whilst at the same time the mother’s right to feel comfortable should be protected. In doing both those things, the child’s best interests are served.

30. The issue of equal shared parental responsibility was not raised by the parties and having regard to the limited nature of the application, I do not propose to deal with it.

31. In my view, the orders I propose do meet all of the necessary criteria to say that they are in the child’s best interests.

I certify that the preceding Thirty One (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date: 23 December 2009