ASR and BP
[2007] FMCAfam 552
•31 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ASR & BP | [2007] FMCAfam 552 |
| FAMILY LAW – Children – parenting order – consideration of factors – nature of meaningful relationship – equal shared responsibility disputed by mother – equal time – whether equal time impractical – substantial and significant time – meaning of weekends – whether weekends may be days other than Saturday or Sunday – proper place for change over. |
| Acts Interpretation Act 1901 (Cth) Family Law Act 1975 (Cth), ss.60B(1)(2), 60CC (2)(a) & (b), (3)(a) – (i), (4A), 65DAA(1)(a) & (b), (3), 117(2) & (2A) |
| Aberdeen (City) v Watt (1901) 3 F 787 ACTU, ‘Working Hours and Work Intensification Background Paper’ (11 July 2003, ACTU) Justice J. Boland and C. Pitcher ‘Supervised contact: solution or soft option? When all else fails – what about a contact centre?, Papers of the 11th National Family Law Conference. |
| Applicant: | ASR |
| Respondent: | B P |
| File Number: | MLM 9808 of 2006 |
| Judgment of: | Lucev FM |
| Hearing date: | 20 June 2007 |
| Date of Last Submission: | 20 June 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 31 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr GA Devries |
| Solicitors for the Applicant: | David Stagg Tonkin & Co |
| The Respondent: | BP appeared in person |
ORDERS
The Father and Mother have equal shared responsibility for the Child.
The Child live with the Mother when not spending time with the Father.
The Child live and spend time with the Father as follows:
(a)from 7:00 pm Monday to 9:00 am Thursday each week, except as provided hereunder;
(b)when the Child commences kindergarten or school, for one half of all gazetted Victorian school holidays, the first half in odd numbered years and the second half in even numbered years;
(c)from 6:00 pm the night before Father’s Day until 6:00 pm on Father’s Day;
(d)on the Child’s birthday from 6:00 pm the night before the birthday until 6:00 pm on the birthday in 2007 and each alternate year thereafter, and from 6:00 pm to 9:00pm on the birthday in 2008 and each alternate year thereafter;
(e)on the Father’s birthday from 6:00 pm the night before the birthday until 6:00 pm on the birthday in 2007 and each alternate year thereafter, and from 6:00 pm to 9:00 pm on the birthday in 2008 and each alternate year thereafter;
(f)for Christmas Day from 6:00 pm Christmas Eve to 6:00 pm Christmas Day in 2007 and each alternate year thereafter, and from 6:00 pm Christmas Day to 6:00 pm Boxing Day in 2008 and each alternate year thereafter; and
(g)otherwise, by agreement between the Mother and Father.
The Child live and spend time with the Mother as follows:
(a)from 9:00 am Thursday to 7:00 pm Monday each week, except as provided hereunder;
(b)when the Child commences kindergarten or school, for one half of all gazetted Victorian holidays, the first half in even numbered years and the second half in odd numbered years;
(c)from 6:00 pm the night before Mother’s Day until 6:00 pm on Mother’s Day;
(d)on the Child’s birthday from 6:00 pm to 9:00 pm in 2007 and each alternate year thereafter, and from 6:00 pm the night before the birthday to 6:00 pm on the birthday in 2008 and each alternate year thereafter;
(e)on the Mother’s birthday from 6:00 pm the night before to 6:00 pm on the birthday in 2007, and from 6:00 pm to 9:00 pm on the birthday in 2008 and each alternate year thereafter;
(f)for Christmas Day from 6:00 pm Christmas Day to 6:00 pm Boxing Day in 2007 and each alternate year thereafter, and from 6:00 pm Christmas Eve to 6:00 pm Christmas Day in 2008 and each alternate year thereafter; and
(g)otherwise, by agreement between the Mother and Father.
That unless otherwise agreed, the Child shall be allowed to speak on the telephone with the parent with whom she is not living or spending time with each day between 6:30 pm and 7:00 pm, and the parent with whom the Child is living or spending time will ensure the Child is available to receive the call.
That each parent will facilitate any reasonable request by the Child to telephone the other parent.
The Father may take the Child to visit the Father’s relatives in another state at any time during which the Child is living with the Father.
Neither parent shall take any steps to change the Child’s name without the consent of the other parent, or further order of this Court.
Change over shall occur outside the home of the parent to whom the Child is being returned by the parent with whom the Child has been living or spending time, provided that change over on Thursday mornings may be at the Mother’s hairdressing salon if requested by the Mother by 7:00 pm on the previous Wednesday, and further provided that the Father and Mother may agree to change over occurring at a different time and place.
Each parent shall advise the other of their residential address, landline and mobile phone numbers and email addresses, and advise the other parent when those details change within two days of the change.
Each parent shall advise the other of any serious illness or injury suffered by the Child as soon as practicable within 12 hours of the occurrence of the injury or onset of the illness.
That each parent is authorised by these orders to communicate directly with the Child’s kindergarten, school, medical and other health practitioners on any matters concerning the Child, and those persons are authorised by these orders to release the original or a copy of any reports, documents or other materials concerning the Child to each parent.
Neither parent shall denigrate the other to or in the presence of the Child and neither party shall involve the Child in issues in dispute between the parents.
Under s.65L of the Family Law Act, 1975 (Cth) these orders be supervised by a Family Consultant appointed by the Manager, Child Dispute Services, Melbourne Registry, and further that the Family Consultant so appointed give any party to these orders any assistance reasonably required by that party in relation to compliance with, and the carrying out of, these orders until 29 February 2008.
That by 4:00 pm on 14 September 2007 each parent is to contact the Family Relationship Centre Greensborough to gain assistance in enrolling in a Parenting Orders Program for high conflict families run by a Centre closest to each parent’s residence, and that by 4.00 pm on 28 September 2007 the parents are to be enrolled in such a program.
That each party shall fully participate in and complete the Parenting Orders Program referred to in order (15) and shall comply with all reasonable directions by the Program Director.
The parents shall consult with respect to:
(a)the enrolment of the Child in child care, kindergarten, school and any changes in enrolment once enrolled;
(b)the Child’s religious upbringing, including the Child’s christening and attendance at significant religious events; and
(c)appropriate medical, dental and other health practitioners for the Child as the need requires,
and, in the event that the parents are not able to agree in relation to the above issues the parents are to be referred to a mediator nominated by the Dispute Resolutions Coordinator of the Federal Magistrates Court for mediation in an endeavour to resolve such issues. If there are any costs of the mediation, these costs are to be shared equally between the Mother and Father.
The Father shall not smoke cigarettes in the presence of the Child.
The parents shall use a communication book to convey information about the Child, the communication book to be passed between the parents, via the Child, at change over.
Pursuant to s.65DA(2) of Family Law Act 1975, (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM 9808 of 2006
| ASR |
Applicant
And
| BP |
Respondent
REASONS FOR JUDGMENT
Application and Issues
By an Amended Application filed 15 June 2007 the Applicant Father, ASR (“Father”), seeks parenting orders concerning the child of his relationship with the Respondent MBP (“Mother”). MGRP is the child of the relationship (“Child”).
The real dispute between these parties is about:
a)the degree of parental responsibility to be exercised by each parent; and
b)the amount of time to be spent with each parent.
The disputed issues are reflected in the nature of the final orders sought which can be summarised as follows:
a)for the Father:
i)that there be equal shared parental responsibility;
ii)that the Child live with the Mother, except when living with the Father as follows:
1. from 7:00 pm Monday to 9:00 am Thursday each week (3 overnight stays);
2. the usual shared arrangements for holidays and special days and access to kindergarten and school materials and professionals;
3. that the mother be restrained from changing the Child’s name;
4. that the mother be restrained from taking the Child to the Mother’s workplace for extended periods of time; and
5. the Mother and Father consult with each other regarding selection of the Child’s kindergarten and school.
b)for the Mother:
i)that the Mother have main parental responsibility for the Child;
ii)that the Child spend time with the Father from:
1. from 9:00 am until 5:00 pm Saturday and 9:00 am until 5:00 pm Sunday on alternate weekends;
2. from 9:00 am until 5:00 pm each day for one half of all gazetted Victorian school holidays;
3. from 9:00 am until 5:00 pm on Father’s Day;
4. from 9:00 am until 3:00 pm on the Child’s birthday;
5. from 9:00 am until 3:00 pm on Christmas Day;
6. from 9:00 am until 5:00 pm on the Father’s birthday or pick up from school until 6.30 pm if the Father’s birthday falls on a school day (once the Child is attending school); and
iii)that all contact with the Applicant for the purposes of changeover be mediated through a named friend of the Mother’s.
The Law
Principles to be applied and procedure to be followed
The judgment of the Full Court of the Family Court of Australia in Goode & Goode[1] concerned interim parenting orders under the Family Law Act, 1975 (Cth). The Full Court of the Family Court of Australia in Hungerford v Tank,[2] 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:
[1] (2006) 206 FLR 212; [2006] FamCA 1346 (“Goode”).
[2] [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.”[3]
Evidence
[3] 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”).
Documents relied on – Father
The Father relies upon the following documents:
a)the Father’s Affidavit sworn 14 November 2006 (“Father’s First Affidavit”); and
b)the Father’s Affidavit sworn 15 June 2007 (“Father’s Second Affidavit”),
as well as the filed case outline document.
Documents relied on – Mother
The Mother relies upon the following documents:
a)the Mother’s Affidavit sworn 11 January 2007 (“Mother’s First Affidavit”); and
b)the Mother’s Affidavit sworn 18 June 2007 (“Mother’s Second Affidavit”),
as well as the filed case outline document.
Family Report
There was no Family Report in this matter.
Facts not in dispute
Facts which do not appear to be in dispute include the following:
a)the Father and Mother had a domestic relationship from 2001 to 2006;[4]
[4] Father’s First Affidavit, para 1; Mother’s First Affidavit, para 3.
b)the Child was born in 2004;[5]
[5] Father’s First Affidavit, para 2; Mother’s First Affidavit, para 3.
c)the Father is employed as a departmental manager in the retail industry in a suburban store at H C in Victoria, where he works from Thursday to Monday within the span of hours of 9.00 am to 5.30 pm, other than on Fridays when he works from 11:00 am to 9.00 pm, with no work brought home;[6]
[6] Father’s First Affidavit, para 3; Transcript pp. 5, 19 & 26.
d)the Mother purchased a hairdressing salon in April 2002 in N B, Victoria, and has worked as a self employed hairdresser, working from Tuesday to Saturday, generally between the hours of 10.00 am to 3.00 pm, except on Saturdays when the span of hours may extend from 9.30 am to 6.00 pm;[7]
[7] Mother’s First Affidavit, para 2; Mother’s Second Affidavit, para 5; Transcript, p. 32.
e)the Father resides in a unit in B H, in Victoria;[8]
[8] Father’s First Affidavit, preamble.
f)the Mother resides in a property in G, in Victoria;[9]
[9]Father’s First Affidavit, para 4; Mother’s First Affidavit, para 4. There is a dispute concerning ownership of the Greensborough property but that dispute is not material to the disposition of these proceedings.
g)the Father and Mother separated in 2006;[10]
[10]Father’s First Affidavit, para 5.
h)on 24 June 2005 an Intervention Order was made at the instance of the Mother against the Father in the following relevant terms:
“The Court ordered that the defendant be prohibited from:
Assaulting, harassing, or intimidating the complainant.
Causing another person to engage in conduct prohibited by this Order.
…
Notation;
By consent and on “a without prejudice basis” the parties hereby agree to be bound by the following arrangement until determination of matters by the Family Court, other Court or by agreement between the parties:
1). Mr ASR to vacate living at the premises situated at G by no later than 7 days from today’s date (24/6/05).
2). Mr ASR to have access with the Child (aged 7 months) on Tuesdays and Wednesdays each week between 9am & 9pm. The Child is to be picked up from 51 M C and dropped back at that address by Mr ASR.
This Order will last until 23/6/2006.”
An extension of the Intervention Order was applied for on 24 March 2006 by the Mother to include telephone and other contact (except for child contact) and to preclude the Father from being within 200 metres of the Mother’s residence and hairdressing salon. There is no indication that application for extension was ever proceeded with or granted;[11]
i)the Child needs to spend time with both of her parents;[12] and
j)the Child has spent two days (but not nights) per week with the Father by agreement with the Mother since at least 22 March 2006,[13] including two nights since an order of this Court on 31 January 2007.[14]
Primary Considerations – section 60CC(2)
[11]Mother’s Second Affidavit, para 14 and unnumbered annexure, being an Application to Revoke, Vary or Extend an Intervention Order, dated 24 March 2006; Father’s Second Affidavit, para. 14.
[12] Transcript, p.29.
[13] Father’s First Affidavit, paras 8-9 and Annexure AR1; Mother’s First Affidavit, paras 7-8; Mother’s Second Affidavit, para. 13.
[14] Father’s Second Affidavit, Annexure AR1.
Benefit to the child of having a meaningful relationship with both parents – section 60CC(2)(a)
The emphasis here must be on the benefit to the Child, and not the ongoing dispute between the parents:
“a lack of meaningful relationship between the parents does not necessarily amount to a lack of benefit to the Child from a relationship with both parents”.[15]
[15]PS & OS [2007] FMCAfam 285 at para. 23 per Lucev FM (“PS & OS”). See also P. Parkinson, ‘Decision-making about the best interests of the child: The impact of the two tiers’ (2006) 20 Australian Journal of Family Law 179 at 184 (“Parkinson”): “A child will almost always benefit from a meaningful relationship”, and research cited at footnote 14 in relation to this quote.
Both parents want a meaningful relationship with the Child, and there is no dispute that the Child will benefit from having a meaningful relationship with both parents.
A meaningful relationship does not mean an optimal relationship.[16] There are however a number of factors which might facilitate, or provide the opportunity for, an ongoing meaningful relationship with both parents.[17] For present purposes some of these are helpfully outlined in P & P,[18] and include the following:
[16] Godfrey & Sanders [2007] FamCA 102 at para 36 per Kay J.
[17] Parkinson, at 185.
[18] [2006] FMCAfam 518 (“P & P”).
a)time spent with a child;
b)the extent of time spent with the child, but more importantly the:
i)quality; and
ii)utilisation,
of the time spent;
c)the distribution of time spent (which may impact on quality and utilisation), and whether time spent includes:
i)weekends;
ii)holidays; and
iii)weekdays,
and particularly, time allowing parental involvement in:
iv)daily routine; and
v)occasions of significance.[19]
[19] P & P at para 257 per Brown FM.
To these factors might be added:
a)the ability of a parent to spend time with a child overnight;[20]
b)allowing a child to spend sufficient time with a parent to facilitate visits, and the development of relationships, with relatives (including, where appropriate, interstate or overseas relatives);
c)the capacity to communicate by proper means (including, for example, post, telephone, email and webcam) with a child when not spending time with a parent (and especially in relocation cases);[21] and
d)allowing a parent to properly exercise a level of parental responsibility in relation to a child so as to facilitate the development of emotional bonds and a parenting style of benefit to a child.[22]
[20] Cardaklija v Cardaklija [2007] FMCAfam 16 at paras 26-40 per Altobelli FM (“Cardaklija”).
[21] M & S [2006] FamCA 1408 at para 45 per Dessau J; M & K [2007] FMCAfam 214 at paras 12-13 and 20 per Altobelli FM.
[22] P & P at para 258 per Brown FM; Parkinson, at 184, particularly footnote 14.
The Court considers that the benefit to the Child of a meaningful relationship with both parents would be best enhanced by:
a)the Child spending at least substantial and significant time with each parent, and optimally equal time; subject to various considerations discussed further below; and
b)an equal sharing of parental responsibility,
subject to the various further factors and considerations below.
The need to protect the Child – section 60CC(2)(b)
The parties raised a number of incidents concerning matters which arguably might be said to give rise to a need to protect the Child from being subjected to, or exposed to, abuse, neglect or family violence.
The Father referred to an incident where the Child was allegedly left unsupervised at the bottom of a steep driveway near the letterbox at the Mother’s residence for a period of approximately 10 minutes.[23] The Father’s evidence was entirely hearsay, but was not objected to by the Mother, who was self represented. Nor was the Father cross-examined on the evidence. The Mother says that she had arrived home from shopping and taken bags to the front door, calling the Child to come up the stairs from the garage, at least 10 metres from the letterbox. The Mother says that the neighbour (on whose account the Father’s version of events is based) pulled up in her driveway and proceeded to attend to the Child, until the Child was taken by the Mother. The Mother says that the incident lasted about one minute.[24] The Mother’s account is a first hand one, and therefore preferred to that of the Father. In any event it appears to be an isolated incident, and not one from which a predisposition to neglect on the part of the Mother can be inferred.
[23] Father’s First Affidavit, para 14(a).
[24] Mother’s First Affidavit, para 14.
The Father made much of the Child spending time with the Mother in the Mother’s hairdressing salon. This included complaints about possible (and it rose no higher than that) exposure to chemicals, sharp instruments and electrical equipment, and the lack of socialisation with other children caused by the Child being in the hairdressing salon.[25] There is no indication that the Father’s complaints are based upon actual observation of the Child in the hairdressing salon. The Mother took issue with the Father: she said that the Child was under supervision at all times, and was not exposed to the hazards described above, and that the Child socialised, both with adults and children who were brought into the salon.[26] During the Father’s closing submissions the Court observed that the evidence was not strong, and that “generations of Australians, particularly migrant Australians, … have grown up in their parents’ workplaces, be they trucks, fish and chip shops, restaurants or hairdressers”[27] and the necessity for the orders sought by the Father prohibiting the Mother from taking the Child to the hairdressing salon for extended periods (effectively whilst she worked) was not immediately apparent. Upon instructions, that part of the application seeking orders prohibiting the Child from spending time at the Mother’s hairdressing salon was not pursued.[28]
[25] Father’s First Affidavit, para 14(b); Father’s Second Affidavit, para 34.
[26] Mother’s First Affidavit, para 16; Transcript, p.33.
[27] Transcript, p.50.
[28] Transcript, p.50.
There was some evidence given of a bruise to the forehead and a bruise on the thigh of the Child. The evidence was that the former was from a fall, and as a consequence, there was no report to the Department of Human Services by the Father, who had contemplated making such a report. The latter was discussed by the Father and Mother and neither was able to pin-point its cause, and neither took the incident any further. Given that the two incidents appear to be isolated and apart, the latter may be nothing more than a normal childhood bruise. Certainly, there is no evidence giving rise to any suggestion of neglect or abuse by either Father or Mother.[29]
[29] Father’s First Affidavit, para 14(c); Transcript, pp. 8-9.
The Father asserted that the Mother’s son by her first marriage was a 22 year old who “may … now be residing” with the Mother and the Child.[30] The Father asserts that the Mother’s son has convictions relating to theft, assault, breaking and entering and drugs, and has been hospitalised in a psychiatric facility, and that he would not be a good influence on the Child.[31]
[30] Father’s First Affidavit, para 14(d).
[31] Father’s First Affidavit, para 14(d).
The Mother’s evidence is that her son does “not normally live with” the Mother, but that she supports him if necessary, and that in 2006 he stayed with her for a “few months”.[32] The Mother says that her former husband and son have “maintained a healthy respect” for the Mother and the Child “[d]espite any suspicion of involvement with drugs”.[33]
[32] Mother’s First Affidavit, para 17.
[33] Mother’s First Affidavit, para 17.
The Father also asserts that the Mother’s former husband is someone who she remains in contact with, and that he has a conviction for a drug related offence for which he spent three years in goal.[34] The Father does not assert that the Mother is “involved in the drug culture”, nor does he believe that she takes drugs, but remains concerned about the possible adverse effect on the Child of contact with the Mother’s former husband.
[34] Father’s First Affidavit, para 14(e).
The evidence in relation to the Child’s contact with the Mother’s former husband and son amounts to the son having lived with the Mother for a few months in 2006 (it is not said which months). There is no evidence that any contact that the Child had with the Mother’s son during this period adversely affected the Child. There is no express evidence of contact with the Mother’s former husband, although it appears implicit, and is not denied, in the Mother’s evidence. Again, there is no evidence that any contact with the Mother’s former husband has adversely affected the Child.
The Father’s concern is also not such as to lead to an application for orders that the Child not live with the Mother. Further, the Mother was not cross-examined on this issue at all. In those circumstances, the Husband must be taken to have accepted the Mother’s evidence of her former husband and son’s “healthy respect” for the Mother, and more particularly the Child.
In the circumstances, the evidence does not disclose a need to make orders protecting the Child in relation to any possible contact with the Mother’s former husband or son.
The Father has also raised an incident where the Mother and Child were allegedly seen wandering in the darkness, with the Child 20 metres behind the Mother, after the Father had dropped off the Child with the Mother at an oval. The incident as described above was seen by a third person, not the Father.[35] The Mother says that the Child was not “at risk”. The Mother says that she and the Child had simply stopped out on a warm night at the oval, and that the Mother had walked across to watch some ladies play tennis.[36] There is nothing in the evidence which indicates that the Child was actually or potentially at risk, and in the circumstances, the Mother’s first hand evidence of what occurred is to be preferred to the hearsay account proffered by the Father.
[35] Father’s First Affidavit, para 16.
[36] Mother’s First Affidavit, para 19.
The Mother asserts that the Child regularly returns from visits from the Father with nappy rash and in particular nappy rash so bad that the Child can hardly walk.[37] The Mother asserts that the Child is toilet trained, whilst the Father says that she is partially toilet trained, and that he only puts nappies on her when they go out.[38] The Mother says that she took the Child to the doctor for “severe nappy rash”, “I think in January … twice”.[39] No mention of the visit to the doctor, and no evidence of the visit to the doctor, was in evidence before the Court prior to the hearing. No doctor was called to give evidence. The Mother did refer in the Mother’s Second Affidavit to the issue of nappy rash, but does not indicate that it was serious or severe, and does not indicate that it necessitated a doctor’s visit.[40] The Mother was unable to cogently explain her failure to put evidence of the alleged severe nappy rash before the Court.[41] In the circumstances, the Court has come to the view that the Mother’s evidence concerning the nappy rash is somewhat exaggerated. In any event, there is no evidence of a severe on going problem, and as the Child is rising three years of age, it may not be an on-going issue, particularly, if, as the Mother asserts, the Child is toilet trained.
[37] Transcript, p. 35.
[38]Transcript, p. 12 and 37.
[39] Transcript, p. 35.
[40] Mother’s Second Affidavit, para 21.
[41] Transcript, pp. 35-37.
The Mother raised the issue of the Father smoking in the presence of the Child.[42] The Father gave an undertaking to the Court that he was prepared not to smoke in the presence of the Child at all.[43] The Court will make an appropriate order in that respect.
[42] Mother’s Second Affidavit, para 21.
[43] Transcript, p. 6.
The Mother’s “biggest concern”[44] is that the Father told her that at the age of about 5 or 6 he had been sexually molested by an Aunt, a matter which he had no hesitation in admitting when cross-examined by the Mother.[45] The evidence however goes no further.
[44] Mother’s Second Affidavit, para 22.
[45] Mother’s Second Affidavit, para 22; Transcript, p. 12.
It “also concerns”[46] the Mother that the Father takes what she describes “strong medication for what he called migraine headaches”.[47]
[46] Mother’s Second Affidavit, para 23.
[47] Mother’s Second Affidavit, para 23.
On the basis of the sexual molestation as a five or six year old (the Father is now 40 years old)[48] and the occurrence of migraine headaches, the Mother sought an order that the Father be psychiatrically assessed.
[48] See outline of case document of Father under Chronology of Events.
The Court has set out the ambit of the evidence in relation to sexual molestation above.[49] In relation to the migraines the evidence indicates that:
a)the Father has a migraine about once a month;[50]
b)he has some forewarning of the onset of a migraine;[51]
c)he takes non-prescription drugs to control the migraine;[52]
d)the medication ameliorates the effect of the migraine and he is not incapacitated by the migraine;[53] and
e)it has never been necessary for him to have another person care for the Child by reason of a migraine, or its effects.[54]
[49] See para 27 above.
[50] Transcript, p. 12.
[51] Transcript, p. 25.
[52] Transcript, pp 12 and 25.
[53] Transcript, p. 25.
[54]Transcript, p. 20.
There is no evidence that the Father suffers adverse effects from the one incident of sexual abuse well over 30 years ago. Further, there is no evidence that the Father’s relationship with the Child is impacted in any way by the one incident of sexual molestation all those years ago. There is no evidence that the migraine headaches are other than a physical illness. There is no evidence warranting this Court making any orders that the Father be referred to a psychiatrist because of the Father’s sexual molestation, once, as a child, or because of the migraines that he now suffers perhaps once a month.
Having regard to the evidence, there is no need to make orders for the protection of the Child, save to make an order to reflect the undertaking given by the Father that he will not smoke in the presence of the Child.
Other considerations – section 60CC(3)
Views expressed by the Child – section 60CC(3)(a)
The Child is currently two years of age. On account of the Child’s age no weight can be attached to any view expressed by the Child.
The nature of the relationship of the Child with each of the parents – section 60CC(3)(b)(i)
The Father gave evidence that he got on well with the Child, and that they had bonded.[55] The Child has been spending two days a week with the Father since separation, including two nights a week since this Court’s order of 31 January 2007.[56]
[55] Father’s First Affidavit, para 12; Father’s Second Affidavit, para 24.
[56] Father’s First Affidavit, paras 8-9; Mother’s First Affidavit, paras 7-8; Father’s Second Affidavit, Annexure AR1.
The Father does not dispute that the Mother loves the Child, and that the Mother and Child get on well.[57] The Mother and the Child sleep together.[58]
[57] Father’s Second Affidavit, para 25.
[58] Father’s First Affidavit, para 15; Mother’s First Affidavit, para 10.
The evidence establishes that the Child has a close and loving relationship with each of the parents.
The nature of the relationship of the Child with other persons – section 60CC(3)(b)(ii)
The Father has no relatives to assist him with the care of the Child,[59] and, on the evidence, no close relationship with any other person which might impact upon the Child.
[59] Transcript, p.19.
The Father does have family at A, where his parents and a sister (with a three year old child) live.[60]
[60] Father’s Second Affidavit, para 27; Transcript pp 24 & 26.
The Father seeks an order from the Court which will facilitate his travelling to enable the Child to visit the paternal grandparents, aunt and cousin.
The Mother opposes the Child being allowed to travel, initially saying she is too young (at two rising three years of age) to travel.[61] The Mother, albeit somewhat grudgingly, does not dispute that the Child will enjoy time with her paternal grandparents and aunt.[62] More telling reasons for the Mother’s opposition to the Child travelling emerged in cross-examination. The Mother said that she did not trust the Father.[63] Although it was not said by the Mother, it might be inferred that she does not trust the Father to return with the Child if he takes the Child. There is no evidence that the Father intends to do so, he was not cross-examined about any intention to do so, and, in any event, such action would be unwise given a party can not use a unilateral relocation to justify this Court making a relocation order or utilising the relocation as an impediment to a child spending time with the other parent.[64]
[61] Transcript, pp 38-39.
[62] Transcript, p.39; the Mother saying “Probably she will”.
[63] Transcript, pp 38-39.
[64] B & B at para 28 per Wilson FM; GI & TI [2007] FMCAfam 302 at para 34 per Lucev FM.
The Mother also said under cross-examination that she would accede to the Father’s request to take the Child to another state:
“If he is nice to me, …, I would say yes”.[65]
[65] Transcript, p.38.
The Mother’s admission that she would accede to the Child travelling to another state if the Father were nice to her indicates that the Mother’s motivation, at least in this regard, is personal, and relates to the relationship between her and the Father, and that her decision has nothing to do with the best interest of the Child.
In the Court’s view the Child is old enough to travel. Further, it is appropriate that the Father when he is spending time with the Child be allowed to utilize that time in activities in the best interest of the Child. Ordinarily, there can be no argument that it is in the best interest of the Child (particularly one aged two rising three) to establish a relationship with paternal grandparents and other paternal relations. On the evidence there is nothing to take this case out of the ordinary in that respect. The Court will therefore make orders which facilitate the Father travelling with the Child to another state to allow the Child to establish a relationship with her paternal relations.
The only evidence of the Child’s relationship with persons on the Mother’s side is the evidence of the relationship that the Mother has (and the Child has through the Mother) with the Mother’s son and former husband. As the Court has indicated above[66] there is no evidence that the Child has a relationship with the Mother’s son or former husband which is inappropriate.
The willingness and ability of each of the Parents to facilitate and encourage a close and continuing relationship between the Child and other Parent – section 60CC(3)(c)
[66] See paras 18-23 above.
The Father expressed doubt in his evidence as to the Mother’s willingness to facilitate a close and continuing relationship between the Father and the Child, but makes it clear that he is prepared to facilitate a close and continuing relationship between the Child and the Mother.[67]
[67] Father’s Second Affidavit, paras 25, 27, 28 & 34.
The Father has good reason to doubt that the Mother will facilitate and encourage a continuing relationship between the Child and Father. The Mother’s unwillingness is evidenced by:
a)her failure to reply to the Father’s solicitor’s letter of 22 March 2006;[68]
b)the Mother’s refusal to allow the Father to spend time with the Child overnight until ordered by this Court to do so on 31 January 2007, and her continued agitation of the overnight stays issue;[69]
c)the Mother’s assertions that the Father was not nice to her, that she did not trust him,[70] assertions which in the Court’s view are not supported on a proper consideration of the evidence before the Court;
d)the Mother’s pursuit of an order for psychiatric assessment of the Father, in circumstances where the evidence simply did not sustain the necessity for such an order;[71]
e)the Mother’s reluctance to give credit to the Father in relation to the time spent by the Child with the Father, and the Child’s enjoyment of that time;[72]
f)the Mother’s attitude to change-overs which appears to be based solely upon her desire not to have the Father near her house or hairdressing salon, and not what is in the best interest of the Child;[73]
g)the Mother’s attitude to the Father in relation to christening the Child, and enrolment of the Child in education facilities, which is summed up by her evidence that “as soon as I enrol her he will be notified”;[74] and
h)the Mother’s attitude that she should always be the primary carer in “the old-fashioned way”.[75]
[68] Father’s First Affidavit, para 7 & Annexure AR1.
[69] Father’s First Affidavit, paras 8-9 & Annexure AR1.
[70] Transcript, pp 38-40.
[71] See paras 27-31 above.
[72] Transcript, pp 37-38.
[73] Transcript, pp 42-43.
[74] Transcript, p.44; see also Transcript, pp 42-45 generally.
[75] Transcript, p.42.
The Court is cognisant of the fact that the Mother obtained an Intervention Order, which on the evidence expired on 24 March 2006 and was not renewed, revoked or varied.[76] The Court notes that the Intervention Order was granted by consent and on a “without prejudice” basis (whatever that means in the context of an Intervention Order); but notwithstanding the Intervention Order the Father continued to live in the M premises until March 2006. This would indicate that the need for the Intervention Order was perhaps less than otherwise would appear to be the case. Even the manner of the separation appears to have been, if not necessarily amicable, at least organised. The Mother changed the locks and on her evidence, washed and folded the Father’s clothes before putting them in his car.[77] The Court’s concern about the lack of real substance behind the Intervention Order is enhanced by the Mother’s evidence in this case. There was no evidence of the Father assaulting, harassing or intimidating the Mother, or causing another person to do so. The Mother pointed to another person approaching her after the appearance in this Court on 31 January 2007, but it appears that the Father had no knowledge of that approach.[78] The Mother’s approach to these issues has to be viewed against the orders that she sought, and doggedly persisted in seeking, for a psychiatric assessment of the Father, in circumstances where there was no evidence to warrant those orders.[79] The Mother’s evidence was ultimately reduced to:
a)asserting that the Father twisted things, an assertion for which there was no proper basis on the evidence before the Court, and which was not apparent to the Court from the evidence given by the Father; and
b)saying that she did not want the Father near her house or her hairdressing salon, for reasons which were simply not made apparent to the Court on the evidence, and irrespective of the best interests of the Child.
[76] See Annexure to Mother’s Second Affidavit.
[77] Father’s Second Affidavit, para 14; Mother’s Second Affidavit, para 14.
[78] Transcript, p.23.
[79] Transcript, pp 47-48, & paras 27-31 above.
The Mother’s attitude is such that the Court does not consider that she will necessarily be prepared to facilitate and encourage a close and continuing relationship between the Child and the Father. The Mother’s attitude is consistent with the order sought by her that she should have main parent responsibility. The Court considers that it will be necessary, as was submitted by the Father,[80] to make a supervision order in this matter. The Court considers that it would also be appropriate for the parents to attend mediation sessions to deal with long term issues concerning the Child’s future educational, religious and health needs if they are otherwise unable to agree upon them.
Likely effect of changes in Child’s circumstances, including separation from parents and others – section 60CC(3)(d)
[80] Transcript, p.45.
On paper, the likely impact on the Child of changes if orders are made as sought by the Father, is likely to be minimal.[81] The Father says that the consequence of the orders that he seeks is to allow the Child to have a further overnight stay with him.[82]
[81] Father’s Second Affidavit, para 30.
[82] Father’s First Affidavit, para 12; Father’s Second Affidavit, para 24.
The practical consequence of the orders may however be of greater significance, particularly with respect to parental responsibility and time spent. This is discussed further below,[83] and the conclusion reached that the likely effect of the changes in the Child’s circumstances if orders are granted in terms sought by the Father as to parental responsibility and time spent, is comparatively minimal and not such as to be contrary to the best interests of the Child.
Practical difficulty and expense of Child spending time and communicating with parents and whether that will substantially affect the Child’s right to maintain personal relations and direct contact with both parents on a regular basis – section 60CC(e)
[83] See paras 71-102.
The parents live in reasonable proximity to each other. Both parents have a car. No issues of practical difficulty or expense arise on the evidence.
Capacity to provide for the needs of the Child, including emotional and intellectual needs – section 60CC(3)(f)
Both parents are in stable employment and would appear to have the necessary means to provide for the needs of the Child.
The Father has appropriate accommodation to provide for the needs of the Child. At the time of the hearing he lived, reasonably close to the Mother, in a two bedroom unit, in which the Child has her own room, in a secure, quiet and non-threatening neighbourhood environment.[84] The Father evinced an intention to move closer to his work, and to move into a better and bigger four bedroom house which he said he would be able to secure for the same rental as his current unit.[85]
[84] Father’s First Affidavit, para 10.
[85] Father’s Second Affidavit, paras 18 & 31; Transcript, p.21.
The Mother continues to live in the home occupied by the Father and Mother prior to separation. Again, it appears that the Child has her own room, and there is nothing in the evidence to suggest that the Mother’s accommodation is inappropriate. There is some suggestion in the Father’s evidence that the back lawn of the Mother’s residence was un-mown, and about a metre high at the time of an uninvited visit by him (at which time the Mother and Child were not there), but there does not appear to be any on-going issue about the maintenance of the Mother’s residence.[86]
[86] Father’s First Affidavit, para 15; Mother’s First Affidavit, para 18.
The Father says that he has purchased appropriate toys and a Foxtel connection for entertainment, and that he takes the Child to the park, walking, shopping, to his workplace on occasions when not working, and that he draws, reads and bike rides with her.[87] The Mother says that she has toys and books at both her residence and hairdressing salon for the Child, but that the Mother does not like the Child watching too much television.[88] The Father says that on the occasion of his uninvited visit to the Mother’s residence that he looked through the windows and saw few toys or educational items inside and that he has a concern that the Child is being insufficiently catered for in this regard.[89] The Mother’s evidence set out above was not challenged in cross-examination, and the Court accepts that the Mother provides appropriate toys, books and other items for the Child’s needs. The Father’s evidence, which amounts to what he saw when peering through a window, is hardly sufficient to make any adverse finding against the Mother in this respect.
[87] Father’s First Affidavit, para 11.
[88] Mother’s First Affidavit, para 18.
[89] Father’s First Affidavit, para 15.
There is some dispute between the Father and Mother about the provision of clothing for the Child. However, it does not appear that the Child is not properly or adequately clothed, and such argument appears to relate to the return and washing of clothing. Those are not matters on which the Court proposes to make orders, rather, they are matters which the Father and Mother will hopefully, with appropriate supervision and parenting programme orders, be able to deal with themselves.[90]
[90] Father’s Second Affidavit, para 22; Mother’s Second Affidavit, para 17.
Both parents appear to recognise the importance of education and religion in the Child’s life.[91] As indicated above[92] the Mother’s attitude to enrolment in educational institutions is to do that first and inform the Father later. It appears that her attitude towards the Child’s religious upbringing is similar. The first notice that the Father had that the Mother intended to christen the Child as an Orthodox Christian was given during her evidence in the hearing.[93]
[91] Father’s Second Affidavit, para 32; Mother’s Second Affidavit, para 19; Transcript pp 17-18, 22, 30-31 and 43-44.
[92] See para 46(g) above.
[93] Transcript, p.30.
The Mother, by denying the Father the opportunity to participate in decisions concerning the Child’s education and religion (or at least foreshadowing that is her intention) displays an inappropriate attitude,[94] and reveals some incapacity to properly provide for the needs of the Child because of a failure to recognise that the needs of the Child, particularly in matters of education and religion, might best be determined via consultation and joint decision making with the Father. The Mother complained constantly during her evidence that the Father always objected and was always “twisting things”[95] but there is no, or no significant evidence, that this is the case. Rather, it appears to be the case that the Mother has decided that she knows what best fits the needs of the Child in this respect, and that she will act first and tell the Father later.[96]
[94] Compare Bray & Kozaczek [2007] FMCAfam 310 at para 48 per Hughes FM (“Bray”).
[95] See, for example, Transcript pp 38 and 42-45.
[96] Compare Bray at para 48 per Hughes FM.
It is the Mother’s attitude toward the needs of the Child in the above matters that necessitate the making of supervision and parental programming orders in this matter. Further, the force with which the Mother’s evidence and submissions were given indicates that orders of that type may be insufficient to ensure that the Father is consulted and participates in the decision making concerning the Child’s needs with respect to education and religion. The Court’s view is reinforced by the Mother’s non-acceptance of the over night stay Orders made by this Court on 31 January 2007.[97] The Court therefore proposes to make orders which will require the Mother and Father to consult with respect to:
a)the enrolment of the Child in a child care or educational facility; and
b)the practice of religion by the Child, including christening and attendance at significant religious events,
and to provide for mediation at their joint expense if the Father and Mother are not able to make a joint decision.
[97] Transcript, p.35.
The above matters aside, it appears that the parents have the capacity to provide appropriately for the needs of the Child.
Maturity, sex, lifestyle and background of Child and Parents – section 60CC(3)(g)
These issues are adequately discussed in the other parts of these Reasons for Judgment.
Aboriginal and Torres Strait Islander Child – section 60CC(3)(h)
Not applicable in this case.
Attitude to the Child and the responsibilities of parenthood demonstrated by each parent and extent of fulfilment of parenting responsibilities – sections 60CC(3)(i) and 60CC(4) and (4A)
Overall, both parents’ attitude to Child is appropriate, loving and caring attitude, within the bounds of the relevant family, social and employment constraints otherwise referred to in these Reasons for Judgment.
Both parents however have failings in relation to their demonstrated attitude to the responsibilities of parenthood, and the extent of the fulfilment of their parenting responsibilities since separation.
On the Father’s part it is apparent that, and to his credit he does not dispute, his failure to pay child support in accordance with his current assessment, which is subject to objection to him, relevantly, on the basis that the Mother has allegedly significantly understated her income.[98]
[98] Father’s First Affidavit, paras 4 and 5; Father’s Second Affidavit, para 36; Mother’s First Affidavit, para 12.
For reasons otherwise described above, the Mother has not exhibited an appropriate attitude to, nor necessarily fulfilled, parenting responsibilities in relation to:
a)facilitating a close and continuing relationship with the Father;
b)her attitude toward educational and religious arrangements for the Child; and
c)overnight stays of the Child with the Father.
Further, it does appear that there is a difficulty, mostly with the attitude with the Mother, but possibly also with the attitude of the Father, to the manner in which change over of the Child takes place.
The foregoing issues necessitate the Court making orders with respect to supervision of the Court’s orders, the requirement for the parents to undergo a parenting programme, and mediation.
Family Violence – section 60CC(3)(j) and (k)
There is no evidence of family violence.[99]
[99] See paras 17-23 above.
Order less likely to lead to further proceedings – section 60CC(3)(1)
The Court is not optimistic that any order it will make will be less likely to lead to further proceedings in relation to the Father, Mother and Child. The Court has endeavoured to fashion orders concerning supervision, a parenting programme and mediation most likely to minimise the likelihood of further proceedings. The attitude of the Mother, as evinced in her evidence, and in her reference in final submissions to the necessity to hire a private investigator when the Court indicated that there was no evidence of a necessity for the Father to undertake a psychiatric assessment,[100] does not imbue the Court with confidence that there will not be further proceedings in this matter. However, if those proceedings are brought on the type of baseless material on which the Mother made an application for orders for psychiatric assessment of the Father in these proceedings, the Court may need to examine whether there are circumstances justifying the making of costs orders.[101]
[100] Transcript, p.48.
[101] FL Act, s.117(2) and (2A); Penfold & Penfold (1980) 144 CLR 311; RNL & RHB [2005] FMCAfam 520 at paras 169-170 per Walters FM.
Consideration – Parental Responsibility
The presumption of equal shared parental responsibility applies in this case.
The orders sought by the Father would formalise equal shared parental responsibility between the Father and Mother. That may impact upon the relationship between the Mother and Father, and any impact may overflow into impact upon the Child, dependent upon the level of consent or dissent between the parents in the exercise of parental responsibility.
In relation to equal shared parental responsibility the Mother, who seeks “main” parental responsibility, asserts that she has been the primary carer since the Child’s birth.[102] The latter is not really disputed by the Father. However, he says that at least for the four weeks after the Child’s birth he took annual leave in order to care for the Child, and the Mother took only one week off from her self-employment as a hairdresser.[103] That a self-employed hairdresser might only take a week off after the birth of a child is perhaps not surprising. Nor, given the relatively restricted hours that the Mother works as a self-employed hairdresser (but including Saturdays), compared to the more extended hours of the Father’s employment (including Saturday and Sunday), it is not surprising that the Mother has subsequently been the primary care giver, a position reinforced by the separation of the Father and Mother and the fact that the Child has lived with the Mother.
[102] Mother’s First Affidavit, para 11.
[103] Father’s Second Affidavit, para 11; Transcript, p.14.
An equal sharing of parental responsibilities is consistent with the underlying objects of the FL Act. It does not seek to derogate from the role of either parent as a care giver per se; and, in the circumstances of the orders sought by the Father in this case, equal shared parental responsibility is not likely to alter the day to day care regime of the Child significantly. Thus its impact on the Child will be minimal. Hopefully, that impact will be further minimised by orders for supervision and the attendance of the parents at a parenting program. Where shared equal parental responsibility will impact is upon the Mother’s present insistence that she determine where it is that the Child is educated, christened and goes to church, and like matters.[104]
[104] See generally Transcript, p.30 (re Child’s christening); p.31 (re school enrolment), and pp 42-45 (re change over and school enrolment).
The Mother provides no rational reason as to why the Court ought not order shared parental responsibility. Her position, succinctly put in her evidence, was that as the Mother she should be the primary carer and major decision maker because it was “the old fashioned way”.[105] That position simply cannot stand against a legislative presumption of equal shared parental responsibility, particularly when there is no evidence to indicate that the Father has abdicated his rights in respect of those responsibilities.
[105] Transcript, p.42.
The Court will order equal shared parental responsibility in this case.
Time spent
Where a parenting order provides for equal shared parenting responsibility the Court must consider whether the Child spends equal time with each of the parents as that is presumed to be in the best interests of the Child.[106] That is qualified by a requirement that the Court consider whether the Child spending equal time with each of the parents is reasonably practicable.[107]
[106] FL Act, s.65DAA(1)(a).
[107] FL Act, s.65DAA(1)(b).
The Court must determine, having regard to all of the primary and other considerations under s.60CC(2),(3),(4) and (4A) of the FL Act (and the underlying objects in s.60B) whether it is in the best interests of the Child that the Child spend equal time with each parent, or whether some other arrangement is appropriate.
In this case it is not reasonably practicable for the Child to spend equal time with each parent.
Put simply, the parents current work arrangements preclude the Child spending equal time with each parent, unless the Child is to spend significant time in child care, and on that basis the equal time spent would be artificial and not in the Child’s best interest.
The time spent by the Child with the Father under the Father’s proposed orders meets the definition of “substantial and significant time” in s.65DAA(3) of the FL Act if, and “only if”[108] the Father’s days off work on Tuesday and Wednesday, or the Mother’s days off work on Sunday and Monday, are considered to be “weekends”.
[108] FL Act, s.65DAA(3).
What constitutes a “weekend” or “weekends”? The FL Act contains no definition. Nor does the Acts Interpretation Act, 1901, (Cth).
Traditionally, the weekend was Sunday (at least in the Christian Tradition). It was also the Sabbath, the Christian day of rest.[109]
[109] It may have been this that led the eighteenth century English poet Henry Carey to write:
That Sunday be the weekend might strike some as curious, for it is traditionally the first day of the week. This is because, strictly, a week is the time between midnight on Saturday and the same hour on the next succeeding Saturday.[110] Therefore, strictly speaking, Sunday could never be the weekend. This is demonstrated by one of the meanings of weekend:
“The end (i.e. the last day) of the week, Saturday.”[111]
[110] 45 Halsbury’s Laws (4th edn), para 1112; Aberdeen (City) v Watt (1901) 3 F 787 at 790 per Lord Trayner; Dunlop Perdrian Rubber Co Ltd v Federated Rubber Workers Union of Australia (1931) 46 CLR 329 at 341 per Dixon J (“Dunlop Perdrian Rubber”).
[111] The Oxford Dictionary, Vol XX, p. 82.
However, “week” can be more broadly defined as:
“any consecutive seven days, the week observed by the particular employer in the calculation of wages, or the five days from Monday to Friday.”[112]
[112] Dunlop Perdrian Rubber at 341 per Dixon J; see also Alam v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 583 at para 50 per Barnes FM.
As Stone J observed in Minister for Immigration and Multicultural and Indigenous Affairs v Alam:[113]
“The word week can have a variety of meanings depending on context.”[114]
[113] (2005) 145 FCR 345; [2005] FCAFC 132 (“Alam Appeal”).
[114] Alam Appeal FCR at 352 per Stone J, FCAFC at para 33 per Stone J; see also FCR at 356 and 357 per Allsop J, FCAFC at paras 50 and 55 per Allsop J.
The High Court has described “week” as “an ambiguous word”.[115] It would follow therefore that “weekend” might be ambiguous or have a meaning depending on context. The Oxford English Dictionary defines “week-end” as follows (excluding the meaning already set out above):[116]
“The end of a week; the holiday period at the end of a week’s work, usually extending from Saturday noon or Friday night to Monday.”
and
“The period from Saturday to Monday during which business is suspended and shops are closed.”[117]
[115] Scott v Sun Alliance Ltd (1993) 178 CLR 1 at 9 per Mason CJ, Brennan, Dawson, Toohey and McHugh JJ (“Scott”).
[116] See para 84 above.
[117] The Oxford English Dictionary , Vol XX , p. 82.
The Macquarie Dictionary defines “weekend” as follows:
“the end of the working week, especially the period form Friday night or Saturday to Monday, as a time for recreation, visiting etc.”[118]
[118] Macquarie Dictionary, p. 1980.
The second of the Oxford Dictionary meanings refers to Saturday to Monday as a period during which business is suspended and shops are closed. In Australia business is no longer suspended and shops are no longer closed on Saturdays and Sundays. Indeed the question only arises here because the retail shop in which the Father works is open on Saturday and Sundays and he works on those days. The Father is not alone. The Mother also works Saturdays. More broadly however Australian working patterns have “altered markedly” since the mid-1970’s, caused by a combination of factors including globalisation, value based management and the move to a seven day trading week.[119]
[119] P. Shepanski & M. Diamond, ‘An Unexpected Tragedy. Evidence for the connection between working hours and family breakdown in Australia’, (March 2007, Relationships Forum Australia Inc), p.19 (“Shepanski & Diamond”).
The latest research indicates that more than thirty per cent of Australians work regular weekends.[120] As long ago as July 2003 the Australian Council of Trade Unions (“ACTU”) observed that:
“The standard working week is currently worked by only one third of the full-time workforce: fewer than half of all employees only work Monday to Friday, a quarter work weekends, and one in eight have variable hours.”[121]
[120] Shepanski & Diamond, p. 19.
[121] ACTU, ‘Working Hours and Work Intensification Background Paper’ (11 July 2003, ACTU) at para 13.
Between 1974 and 1997 the proportion of employees working Sunday rose from fourteen percent to twenty-three percent, and by 1997 the proportion of employees working Saturdays had increased to thirty five percent.[122]
[122] Shepanski & Diamond, pp. 23-24.
It would therefore appear that that definition of “weekend” which refers to the period from Saturday to Monday during which business is suspended and shops are closed is redundant in the modern Australian context.
That leaves as the appropriate ordinary meaning of “weekends” the first Oxford English Dictionary definition and the Macquarie Dictionary definition, which are similar. They both refer to that period which occurs at the end of a working week. It is clear that usually this is a reference to the period from Friday night to Monday morning, but not exclusively so. Again, the modern Australian context indicates that it is not unusual for persons to work on Saturdays and Sundays, and that follows that persons will then have days other than Saturday or Sunday off during the week. Those days are, in the words of the definition, “at the end of a week’s work”, or “the end of the working week”.[123]
[123] See paras 87 and 88 above.
In this case, for example, the period at the end of the Father’s working week is the Tuesday and Wednesday that he has off. For the Mother, it is the Sunday and Monday. In practical terms, those days are their weekends. Having regard to the ordinary meaning of the word “weekend” those days are also the Father’s and Mother’s weekends.
Words in statutes must be interpreted in context and having regard to the purpose of the relevant legislation.[124]
[124] Scott at 9 per Mason CJ, Brennan, Dawson, Toohey and McHugh JJ; Alam Appeal FCR at 352 per Stone J, FCAFC at para 33 per Stone J (and cases there cited).
Having regard to the objects of Part VII of the FL Act, and in particular s.60(b)(1) and (2) which provide that:
“(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring 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; and
(b)…
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a 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 (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) …
(e) …
it appears to the Court that “weekends” in s.65DAA(3) of the FL Act can include days other than Saturday and Sunday. If not a significant proportion of the Australian population appearing as parents before this Court would not be able to spend time with their children which meets the definition of “substantial and significant time” in section 65DAA(3) of the FL Act. It cannot have been the Parliament’s intention to exclude them on the basis of a narrow and now outmoded definition of “weekends” which includes only Saturday and Sunday.
Therefore, in this case, the Father’s proposed orders provide for substantial and significant time to be spent by the Child with the Father and the Mother on weekends, the weekends being the Tuesday and Wednesday for the Father and the Sunday and Monday for the Mother.
The question of whether the Child ought have overnight stays with the Father is to be determined in the same manner as the general question of time spent is to be determined.[125] If equal time is not appropriate (and it is not appropriate in this case for reasons elsewhere discussed)[126] then the Court must consider whether as part of spending substantial and significant time with each parent it is reasonably practicable, and in the Child’s best interest, for the Child to spend overnight time with her Father.[127]
[125] See, generally, Cardaklija at paras 26-40 per Altobelli FM.
[126] See para 80 above.
[127] FL Act, s.65DAA(2) and (3).
The Child has been spending time with the Father overnight for two nights per week since the order of this Court on 31 January 2007. There is no evidence before the Court to indicate that the Child’s best interests have been adversely affected by those overnight stays.
The Mother’s evidence is as follows:
“Since the separation, I have never wanted [the Child] to stay overnight with the [Father]. This was primarily for [the Child’s] sake as she is still very young and used to sleeping with me. I think she would get very upset without me there.
I am sure that the [Father] knows this as we have already discussed the issue. He also knows that when [the Child is older] and chooses to do so, I will have no problem with that then.”[128]
[128] Mother’s First Affidavit, para 10.
The Mother further gave evidence that she did not agree with this Court making orders that the Father have the Child for two nights because of “her [the Child’s] age”.[129] Further she says that the Child regularly comes home with nappy rash, a matter already dealt with above.[130]
[129] Transcript, p.35.
[130] Transcript, p.35; paras 25-26 above.
The Child sleeps with the Mother when with her, but when with the Father, sleeps by herself.[131] The latter does not appear to have resulted in any adverse effect upon the Child. The Child is rising three years of age. That is an age where it is appropriate for a Child (absent s.60CC(2)(b) factors, which are not present here)[132] and in the best interest of the Child to spend overnight time with the Father in order to facilitate a meaningful, and close and continuing relationship with the Father. Such an arrangement in part reflects “contemporary research on child development … [which] now emphasise the importance of both parents, including overnight stays, and further involvement during the week, when parenting actually happens.”[133]
[131] Transcript, p.12.
[132] Not present here as outlined in paras 14-32 above.
[133] R. Chisholm, “Post-separation Parenting: The Changing Legal Environment”, unpublished paper cited in T Altobelli, “Rethinking Contact Arrangements Involving Young Children”, (2005) 19 Australian Journal of Family Law 29 at 40.
The orders sought by the Mother would result in twice daily change overs on Saturdays and Sundays and during school holidays. Given the Mother’s concern about change overs seeking those orders is surprising. More importantly however it will impact upon the Child significantly because the Child will be subject to four change overs on each alternate weekend, and twice daily for each day of one half of each school holiday period. Absent good reason, and there is none, such an arrangement is not in the best interest of the Child, and has clearly been designed to accommodate the Mother’s view that the Father ought not have overnight contact with the Child at all. For the reasons set out above the Court rejects that view, and considers that the orders proposed by the Mother would adversely impact upon the Child, by reason of the significant number of change overs. In any event, the orders sought by the Mother are not reasonably practicable given the Father’s working arrangements, and are inappropriate because they seek to deny the Father overnight contact, without good reason.
Consideration – Other issues
Smoking
As indicated above,[134] an order will issue prohibiting the Father from smoking in the Children’s presence.
[134] See paras 26 and 32 above.
Communications Book and Non-Denigration Order
The Father’s evidence that the Mother refuses to communicate with him and that changeover is “silent” [135] was not really disputed by the Mother, albeit that she expressed the position as her being “reluctant to say anything to him” for “fear that it will be twisted around and used against me.” [136]
[135] Father’s Second Affidavit, para 19.
[136] Mother’s Second Affidavit, para 15. But as to the allegations of the Mother about the Father twisting things note para 47(a) above.
To facilitate at least some form of proper communication between the parties it will be necessary for the Mother and Father to use a Communications Book to ensure that issues concerning the child are communicated, that being in the Child’s best interest. The Communication Book must be used for that purpose, and not as a means for the Mother and Father to level criticism at one another, which on the evidence is a risk in this case.[137] To attempt to obviate the risk there will be a non-denigration order and a supervision order.
[137] Compare PS & OS at para 77 per Lucev FM where the Court refused to make final orders for the use of a Communications Book because, prior to final hearing, its use had “seemed to be productive of dispute”.
Changeover
The difficulty of communication between the Mother and Father at changeover is discussed above.[138]
[138] See para 104 above.
The Mother does not want changeover to be at her house or hairdressing salon or at the Father’s residence.[139] In response to questions from the Court the reason for the Mother’s attitude was reduced to “I just don’t want him near my house”, notwithstanding what might be in the best interest of the Child.[140]
[139] Transcript, p.42.
[140] Transcript, p.43.
Under cross-examination the Mother agreed that the present changeover arrangement, which sees the changeover take place in a car park, was not really in the Child’s best interest.[141] Other changeover places were suggested: McDonalds, a police station or a supermarket.[142] The Mother said that she did not regularly take the Child to McDonalds or other fast food places, and preferred to cook for the Child at home.[143] The Court does not consider it to be necessarily in the Child’s best interest to expose her to a fast food environment solely for the sake of the Mother’s desire that the Father not be near her house. Likewise, there is little to be said for unnecessarily exposing the Child to a police station:
“In relation to a police station changeover, I have considerable difficulty in accepting that that is a proper environment for the changeover of a young child. I recognize that it frequently occurs, even by order of this Court. Notwithstanding that, it is my view that it is not appropriate because:
(a) the Child is probably now or soon will be, developing lasting memory,[144] and ought not, in my view, associate the transition from one parent to another with a police station, with the possible negative associations inherent therein;[145] and
(b) a police station is, in any event, a potentially hazardous and undesirable environment for all concerned (particularly the Child), especially, if as the Father’s evidence suggests, the area is one with a significant criminal and drug culture.
A changeover at home (that is the home of the Child and the Mother) is preferable to a changeover at a police station.”[146]
[141] Transcript, p.42.
[142] Transcript, p.42.
[143] Transcript, p.43.
[144] William J Cromie “Long-term memory kicks in after age 1: Human brain not sufficiently developed” “Police stations can be extremely unpleasant places for victims, who may have to wait for hours, sometimes with young children, in offices and foyers”: McManus, Member for Bulli, Hansard, New South Wales Legislative Assembly, 18 November 1998, pp.10227-10228.
[146] F & F [2006] FMCAfam 616 at paras 81-82 per Lucev FM (“F & F”).
A supermarket does not suffer from the same disadvantages as a police station or a fast food place, but there seems no good reason to expose a two year old to the vicissitudes of supermarket car park traffic, Melbourne weather, busy people and the often inevitable search for the other parent that ensues in such situations.[147]
[147] See, for example, F & F at paras 72-73 per Lucev FM.
Often a supervised “contact” centre is used to resolve this issue,[148] but this was not an option canvassed in these proceedings. It might however be an option available, and the Court will ensure that that option is available by ordering that changeover may occur at any other time or place agreed by the Father and the Mother.
[148] As to which, see Justice J. Boland and C. Pitcher ‘Supervised contact: solution or soft option? When all else fails – what about a contact centre?, Papers of the 11th National Family Law Conference, p.519 at 521.
The Mother further suggested that a “mediator” be appointed for changeover, and suggested that a friend of hers whom she has known for five years and says is “of irreproachable character” be “mediator”.[149] That person gave no evidence, and without having had the opportunity to see and hear from her, the Court will not order her appointment as “mediator”.
[149] Mother’s First Affidavit, para 20.
The Mother suggested that the Father was angry and aggressive at changeover.[150] Having observed the Father under cross-examination in the witness box by the Mother, the Court finds it difficult to believe that the Father would be angry and aggressive. The Mother’s cross-examination was conducted in a manner (conveyed by tone of voice and demeanour) which was confrontational and aggressive. Throughout the Father was calm and thoughtful, and did not convey an impression to the Court that he would be angry or aggressive. By contrast, the Mother was throughout the hearing confrontational and aggressive and exhibited fixed views from which she was generally not prepared to depart (for example, in relation to the Father’s sexual molestation, and migraines, and her own view of her role as a Mother). On that basis, and because of the lack of detail in the assertions made by the Mother, the Court is not prepared to find that the Father has been angry or aggressive at changeover.
[150] Mother’s First Affidavit, para 20.
In all of those circumstances, the Court considers that it is in the best interest of the Child that changeovers are to occur at the home of the parent to whom the Child is being returned by the parent with whom time has just been spent, or on Thursday morning at the Mother’s hairdressing salon, save that the parents may agree upon other changeover arrangements..
Kindergarten and School Enrolment – Religion and Christening – Name Change
The Court has already indicated the nature of the orders to be made on these issues[151] save name change. For similar reasons an order will be made prohibiting any change of name for the Child, except by consent of both parents or further order of this Court.
[151] See paras 46(g), 48 and 57-59.
Travel to another state by the Child
The Court will make an order allowing the child to travel to another state, as indicated above.[152]
[152] See para 43 above.
Supervision, Parenting and Mediation
For reasons set out above the Court will make orders for the supervision of its orders, for the parents to attend a parenting programme and to facilitate mediation where the parents are unable to reach agreement on parenting issues concerning the Child.
Other Usual Orders
Other usual orders will be made in relation to school and health professionals, illness or injury to the Child and the exchange of information.
Orders
The Court makes orders as set out in the Orders immediately prior to these Reasons for Judgment, and considers that those orders are in the best interests of the Child.
I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: M Hewitt
Date: 31 August 2007
“Of all the days that’s in the week
I dearly love but one day –
And that’s the day that comes betwixt
A Saturday and Monday.”
From ‘Sally in our Alley’ in A. Quill-Coucher (Ed), The Oxford English Book of Verse, 1250-1900, 444.
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