BAKER & WARWICK

[2019] FamCA 199

FAMILY COURT OF AUSTRALIA

BAKER & WARWICK [2019] FamCA 199

FAMILY LAW – CHILDREN – Interim – Parental Responsibility – Where the presumption of equal shared parental responsibility applies and neither party submitted to the contrary – Concluded the parties will have equal shared parental responsibility for the child.

FAMILY LAW – CHILDREN – Interim parenting orders – With whom a child lives and spends time – Where s 65DAA of the Family Law Act 1975 (Cth) is engaged – Best interests – Where the child has meaningful relationships with both parents – Where the child does not need protection from subjection or exposure to abuse, family violence or neglect – Where the mother relocated with the child without the father’s consent – Where there is no practical impediment to the child either living or spending protracted periods of time with the father – Concluded an equal time arrangement would be in the child’s best interests and would be reasonably practicable to implement – Concluded a mandatory injunction forcing the mother’s relocation not necessary – Concluded there is insufficient evidence to make injunctions to restrain the mother from changing the child’s current medical providers – Ordered the parties do all things necessary for the child to attend her current speech therapist for a period recommended by that speech therapist.

Family Law Act 1975 (Cth) ss 4, 60CA, 60CC, 61DA, 64B, 65AA, 65DAA, 65DAC

Family Law Rules 2004 (Cth) r. 5.10

AMS & AIF (1999) 199 CLR 160; [1999] HCA 26
Sampson and Hartnett (No. 10) (2007) FLC 93-350; [2007] FamCA 1365
Zanda & Zanda (2014) FLC 93-607; [2014] FamCAFC 173

APPLICANT: Mr Baker

RESPONDENT: Ms Warwick

FILE NUMBER: NCC 626 of 2018

DATE DELIVERED: 15 March 2019

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 15 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Rugendyke

SOLICITOR FOR THE APPLICANT: Attwaters

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Browns The Family Lawyers

PENDING FURTHER ORDER, IT IS ORDERED

1.All former parenting orders in relation to the child, born 2014, are discharged.

2.The mother and father shall have equal shared parental responsibility for the child

3.Each of the parties shall take all reasonable steps to ensure the child lives with:

a.The father until 5:00 pm on Sunday, 17 March 2019;

b.The mother from 5:00 pm on Sunday, 17 March 2019, until 5:00 pm on Sunday, 24 March 2019, and every alternate week thereafter; and

c.The father from 5:00 pm on Sunday, 24 March 2019, until 5:00 pm on Sunday, 31 March 2019, and every alternate week thereafter.

4.For the purposes of the child’s exchange between the parties, the parties shall cause the child’s delivery to and collection from the Suburb B Public Library.

5.The parties shall do all acts and things to cause the child to attend speech therapy with Ms C of D Medical Centre, for such period as recommended by Ms C.

6.Each party is restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.

7.Each party shall notify the other of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the child.

8.Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number, and email address.

9.Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

10.Otherwise, save as costs:

a.The Amended Application in a Case filed on 11 March 2019 is dismissed;

b.The Response to an Application in a Case filed on 4 March 2019 is dismissed; and

c.Any and all other outstanding applications for interim relief are dismissed.

11.No order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Baker & Warwick has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 626 of 2018

MR BAKER

Applicant

And

MS WARWICK

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1.The applicant father and the respondent mother have a daughter who is four years old. The parties separated in or about February 2018 and these proceedings, comprising both a dispute over their daughter and the division of their property, were commenced in March 2018.

2.The parenting dispute is very narrow. The parties agree they should have equal shared parental responsibility for the child, but cannot agree whether she should live with the parties for equal time (as the father ultimately wants) or primarily with the mother and spend substantial and significant time with the father (as the mother wants).

3.Despite the narrowness of the dispute, on my count, this is their fourth interim contest since the proceedings began. The catalyst for the current dispute was the mother’s decision to move her residence with the child from the F Region of New South Wales to the southern suburbs of Sydney. The father remains living in the F Region.

4.In June 2018, Cleary J made consent orders for the parties to equally share parental responsibility for the child, for the child to live with the mother, and for the child to spend time with the father on three nights per fortnight, broken into two separate periods.

5.In August 2018, Cleary J made more consent orders for the parties to equally share parental responsibility for the child, for the child to live with the mother, and for the child to spend time with the father on four nights per fortnight, again broken into two separate periods.

6.Another interim dispute was heard by me in September 2018. I made orders adjusting those last made by Cleary J, the overall effect of which was to amend the regime so the child would spend five nights per fortnight with the father, still broken into two separate periods. At that time, both parties were still living in the F Region.

7.The mother works in Sydney. By December 2018 she had tired of commuting between Region F and Sydney for work and she was disaffected by the lack of her friends and family in and around the Region F area. She raised with the father the prospect of his agreement to her relocation with the child from the F Region to Sydney (Exhibit M1). He objected to her doing so whilst ever the parenting dispute remains unresolved (Exhibit F1), but the mother decided to relocate with the child to Sydney regardless. She now rents accommodation in the southern suburbs of Sydney.

8.The father contends, and I accept, the mother’s move was most probably a breach of the existing order allocating equal shared parental responsibility for the child, because it is now more difficult for the child to spend time with the father (see s 65DAC and the meaning of a “major long-term issue” in s 4 of the Family Law Act 1975 (Cth) (“the Act”)). The mother must concede the point, because she too now seeks to change the interim parenting orders which dictate how and when the child will spend time with the father.

9.In reaction to the mother’s relocation with the child, the father filed an Application in a Case on 1 February 2019, which he amended on 11 March 2019. He, effectively, seeks:

(a)an order compelling the mother to relocate back to the F Region with the child;

(b)alternatively, orders for the child to live with him for four days per week in the F Region and with the mother for the other three days of the week in Sydney; and

(c)orders requiring the child’s medical needs to be ministered exclusively by a medical service in the F Region, to which medical service the child was always taken before the mother’s relocation with her.

10.The mother moves on her Response to an Application in a Case filed on 7 March 2019. She seeks retention of the regime under which the child spends time with the father for five nights per fortnight but to aggregate the two separate weekly periods into consecutive nights in fortnightly cycles.

Evidence

11.The father relied upon:

(a)his affidavit filed on 11 March 2019; and

(b)Exhibits F1 and F2.

12.The mother relied upon:

(a)her affidavit filed on 4 March 2019; and

(b)Exhibit M1.

13.Both parties also relied upon the Memorandum dated 24 July 2018 prepared by the Family Consultant. 

14.The father is self-employed. He contended his work hours were so flexible that he would be able to care for the child without extraneous assistance on a full-time basis. The mother doubted the sincerity of that claim and so, since the factual dispute was pivotal to their respective applications, I permitted the mother’s lawyer to cross-examine the father on the issue (r 5.10(2) of the Family Law Rules 2004 (Cth)).

Legal principles

15.Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

16.When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

17.The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA), though that presumption may be rendered inapplicable or rebutted in certain circumstances.

18.In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).

Child’s best interests

Section 60CC(2)(a)

19.In her Memorandum to the Court, the Family Consultant observed:

17. [The child]’s experience of her family and her life is one where she is loved by two very caring and capable parents … She is a child who has had her emotional and practical needs met by both parents.

…

29.It is not in dispute that both parents have the capacity to care for [the child]. They both value each other’s role as parents and acknowledge [the child] loves each of them, as they do her.

20.Such evidence, as was not in dispute, clearly indicates the child has meaningful relationships with both parents from which she derives benefit.

21.Neither party’s interim parenting proposal offers an advantage to the child on account of the nature of the child’s filial relationships.

Section 60CC(2)(b)

22.Neither parent contends the child needs protection against any harm she is liable to suffer from subjection or exposure to abuse, family violence, or neglect.

Section 60CC(3)

23.The additional consideration of significance highlighted by the mother is the likely effect upon the child of any change to current circumstances (s 60CC(3)(d)). Presently, the child lives with the mother in Sydney but spends time with the father in the F Region for two nights in one week and for three nights in the second week. By moving to Sydney, the mother put more distance than previously existed between the parties’ households. To overcome the tyranny of distance and to lessen the travel burden, the mother now proposes consolidating the two separate weekly visits into one consecutive fortnightly visit. On her proposal, the time the child spends with the father will still amount to five nights per fortnight.

24.The father responds it was the mother’s choice, over his objection, to move to Sydney. If the Court refuses to force the mother’s return to live in the F Region, he instead proposes reversing the child’s primary residence. Although not articulated in exactly these terms, the father regards the mother’s decision to relocate contrary to his wishes as a demonstration of her poor attitude to the responsibilities of parenthood (s 60CC(3)(i)).

25.Despite his cross-examination, the father was unmoved on his contention that he could adequately conduct his business around his child-care commitments if he takes over the child’s primary care. He relies on employees and sub-contractors to run his business, so his contention is not implausible. On the balance of probabilities, I find he can do so. Consequently, there is no practical impediment to the child either living or spending protracted periods of time with him (s 60CC(3)(e)).

Conclusions and orders

Parental responsibility

26.The presumption of equal shared parental responsibility applies and is not rebutted (s 61DA). Neither party submitted to the contrary. 

Residence

27.An order for equal shared parental responsibility engages s 65DAA of the Act, so I must first consider whether an “equal time” regime would be in the child’s best interests and would also be reasonably practicable to implement.

28.As to its practicability, there was no dispute. Both parties’ proposals entailed the child’s exchanges between them each week or fortnight: one delivery and one collection. Either could be accomplished. The point of distinction between them was the duration of the child’s residence with each party. The mother wants the child to live with her for nine nights per fortnight (and five nights per fortnight with the father), while the father wants the child to live with him for four nights per week (and three nights per week with the mother).

29.While neither party posited an “equal time” regime, neither could convincingly articulate why equal time would not be in the child’s best interests.

30.The father implicitly conceded equal time would be a suitable regime for the child, since that is precisely what he proposed in the Initiating Application he filed in March 2018 to commence these proceedings.

31.The mother contended there was no evidence to enable a finding that an equal time arrangement would be in the child’s best interests, since the only expert evidence was that contained in the Memorandum prepared by the Family Consultant and it was silent on the issue. The Family Consultant said it was demonstrably in the child’s best interests to spend substantial and significant time with the father, but her omission to expressly say the same about an equal time arrangement does not readily allow an inference she was recommending against it, as the mother asserted it did. At the time the Memorandum was prepared, the parties were only contemplating the number of nights the child should spend with the father on an interim basis while both parties continue to live in proximity to one another in the F Region.

32.If the mother is supportive of the child spending five nights per fortnight with the father, no aspect of the evidence could rationally establish the premise for a reasonable argument that six or seven nights per fortnight with the father would not be in the child’s best interests. The mother submitted it would be a “significant change” for the child to adjust to seven consecutive nights per fortnight with the father, but I reject the submission. The mother actually proposed the alteration of the child’s current weekly visits into one consecutive fortnightly visit. The quantitative difference between five and seven nights per fortnight is not a significant qualitative difference. 

33.True it is, the child is suspected of suffering an autism spectrum disorder (Exhibit F2), but it would be pure conjecture to conclude her condition would accommodate five, but not seven, consecutive nights with the father. Under either regime, the child would still experience two changeovers every fortnight and spend substantial periods of time in each party’s household, which was the essence of the mother’s proposal. 

34.I am, therefore, satisfied an equal time arrangement would be in the child’s best interests and would be reasonably practicable to implement.

35.That being the case, there is no imperative to make a mandatory injunction forcing the mother’s relocation back to the F Region against her wishes, as the father primarily proposed. While there is power to make such an order, it should be sparingly used (AMS & AIF (1999) 199 CLR 160; Sampson and Hartnett (No. 10) (2007) FLC 93-350; Zanda & Zanda (2014) FLC 93-607). The evidence before the Court did not reasonably permit such an order to be considered in any event.

Medical treatment

36.The father sought orders in the following terms:

(5)Pending further order, the mother is restrained from engaging [the child] in speech therapy with any therapist other than one at D Medical Centre [in the F Region].

(6)Pending further order, except in the case of a medical emergency, the mother is restrained from causing [the child] to consult any health service provider other than one at D Medical Centre, without the father’s prior consent.

37.Such orders are not made.

38.An order in the following terms was made by Cleary J on 10 August 2018:

(4)That the parties shall forthwith do all acts and things to arrange and attend joint appointments with Ms G (speech pathologist) and Dr E (paediatrician)

39.Those two persons were apparently medical providers at or arranged through D Medical Centre.

40.An order in the following terms was made by me with the parties’ consent on 21 September 2018:

(1.1) That the parties shall do all acts and things to cause the child … to attend speech therapy with Ms C of D Medical Centre, and shall continue to cause the child to attend upon Ms C as recommended by her or such other speech therapist as recommended by Ms C.

41.Clearly enough, at that time, both parties had confidence in the medical services provided to the child at D Medical Centre.

42.For the purpose of this hearing, the mother deposed that the child still attends speech therapy with Ms C at D Medical Centre and, when the mother told Ms C of her intended relocation to Sydney, Ms C was prepared to recommend a speech therapist in closer proximity to the mother’s proposed new home. The mother deposed she would continue taking the child to speech therapy with Ms C at D Medical Centre until such time as she relocated, but would then engage a Sydney speech therapist recommended by Ms C. It must follow that the mother still has confidence in Ms C and D Medical Centre. She only now considers the alternate use of Sydney medical services for the child because of her relocation. 

43.Also for the purpose of this hearing, but more recently than the mother, the father deposed that he and the mother attended at D Medical Centre on 7 March 2019 and consulted with Dr E. The father contended, without contradiction, that Dr E recommended it would be in the child’s best interests for her to continue to attend D Medical Centre for the provision of medical services and, to that end, a series of appointments were scheduled for the child up to and including 3 May 2019.

44.Having regard to that evidence, it would not assist the child to have the responsibility for her medical care split between different services in Sydney and in the F Region on a week-about basis, depending upon the parent with whom she is living at the time. I intend to renew the consent order made by me in September 2018. An order in those terms does not expressly preclude the child from being taken to medical providers other than those at D Medical Centre in the F Region but, to the extent that could happen, it would be a decision which falls within the embrace of the parties’ conferral with equal shared parental responsibility for the child. They would be obliged to consult.

45.I have insufficient evidence to comfortably make injunctions in the terms sought by the father.

Miscellaneous orders

46.For the purpose of the child’s exchange between the parties, they agreed the changeover venue should be the Suburb B Public Library and so an order to that effect will be made. 

47.Otherwise, the remaining orders I now make either replicate those made at earlier Court events or could not evoke reasonable opposition. 

48.For those reasons, I make orders in the following terms.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 15 March 2019.

Associate: 

Date:  4 April 2019