Banfield and Maguire (No.2)
[2010] FMCAfam 1341
•9 December 2010 (Via video link to Brisbane)
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BANFIELD & MAGUIRE (No.2) | [2010] FMCAfam 1341 |
| FAMILY LAW – Parenting dispute – father and mother living in Melbourne and Queensland respectively – mother disliking father – consideration of frequency and place of time child spends with father. |
| Family Law Act 1975, ss.60CC, 61DA |
| Goode & Goode [2006] FamCA 1345 |
| Applicant: | MR BANFIELD |
| Respondent: | MS MAGUIRE |
| File Number: | MLC 3103 of 2008 |
| Judgment of: | Burchardt FM |
| Hearing date: | 22 October 2010 |
| Date of Last Submission: | 22 October 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 9 December 2010 (Via video link to Brisbane) |
REPRESENTATION
| Counsel for the Applicant: | Mr J. McDermott |
| Solicitors for the Applicant: | James McDermott, Solicitor & Barrister |
| The Respondent: | In person (via Video Link) |
ORDERS
The parties have joint parental responsibility for [X] born [in] 2004.
The child continue to live with her mother in Queensland.
The child spend time with her father in Melbourne on two occasions per year each for one week in each of the long summer and mid year school holiday periods, with the parents sharing the costs of air travel, such time to be spent at the home of the paternal grandmother.
The child and her father communicate by telephone once per week on the mother’s landline between 6.00 pm and 6.30 pm on:
(a)Each Wednesday;
(b)The Father’s birthday, [date omitted];
(c)Father’s Day; and
(d)Christmas Day.
The mother is to ensure that the child is made available for the telephone calls referred to in Order 4.
Each party, their servants and their agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence of the child or from permitting any other person to do so.
The Father be and is entitled to obtain copies of school documents and school photographs direct from the school at his expense, and the mother is to complete any necessary authorisation required to enable this to occur.
The parents each inform the other forthwith of any significant illness or injury suffered by the child when in their care and advise the other of any medication prescribed and provide details of the medical professional who has attended upon the child.
The time to be spent in the summer vacation 2010-2011 will commence on 31 December 2010 in default of agreement between the parties.
IT IS NOTED that publication of this judgment under the pseudonym Banfield & Maguire (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 3103 of 2008
| MR BANFIELD |
Applicant
And
| MS MAGUIRE |
Respondent
REASONS FOR JUDGMENT
This is a parenting dispute about how much time and contact [X], born [in] 2004, spends with her father. The father, who lives in Melbourne, wants to spend more time with [X] than the mother, who lives in Queensland, will countenance. The family report writer broadly concurs with the mother’s position.
For the reasons that follow, I think that the orders I should make are largely in accordance with those sought by the mother.
The parties and their relationship
The applicant father was born [in] 1967 and his employment history has been somewhat chequered. He met the mother, born [in] 1980, in late 2002.
The parties have different perceptions as to when they commenced their relationship but I think the report writer, Ms B, is correct to characterise the matter as follows:
“The parties met in Melbourne in late 2002, commenced a
de facto relationship in early 2003 and after a few months briefly separated. Subsequently Ms Maguire discovered that she was pregnant with [X] and the parents recommenced a relationship which continued until 2006, with the family living in [omitted], Victoria.”
It is clear that the parties separated in about August 2006 when the mother required the father to leave the former matrimonial home. He returned to Melbourne and commenced to live with his mother and although he continues to live in Melbourne, he has not always lived with his mother.
The parties have offered wildly differing versions as to how much time the father spent with [X] following separation, but in the light of the march of events, it is not necessary to resolve that controversy.
A parenting plan entered into in December 2007 does not appear to have been adhered to, and notwithstanding various court orders made from time-to-time, the fact is that for whatever reason, the father spent no time at all with [X] from January 2009 for a very considerable period.
The mother relocated to Queensland with her new partner in October 2009, this being a matter of considerable complaint by the father. There was some discussion between the father and Mr R, the mother’s new partner, as to an agreement as to the terms on which a relocation would be permitted. Whatever the extent of that agreement, it also has not been adhered to.
The hearing has been put off on a number of occasions. On one occasion, a trial date was vacated because the mother raised issues of drug abuse and other antisocial behaviour by the father. Further complications arose because the father missed an appointment with the first family report writer in early 2009. The case was yet again complicated by the fact that the mother became pregnant and gave birth in August 2010.
Because the mother has relocated to Queensland where she lives with Mr R, her own mother and the new child together with [X], it was necessary to take the evidence of the mother and the report writer by videolink.
It should be noted that despite the relatively extensive materials filed, the basic positions of the parties can be articulated quite clearly. The father says that he has always wished to have a relationship with [X] and has been frustrated by the mother who does not like him and who has actively sought to limit his time.
The mother admits that she does not like Mr Banfield but says that she does, albeit perhaps reluctantly, accept that it is appropriate that he spend time with [X]. The mother’s concerns about the father are partly to do with his alleged previous behaviour and the concerns that she has as to whether the father will be able properly to look after [X]. They also relate to the alleged lack of interest on the part of the father about [X] (an allegation that needs to be seen in the context that Mr Banfield has prosecuted his case through to judgment). Furthermore, and perhaps more tellingly, the mother has ongoing concerns about the failure of the father properly to support her financially, a matter she raised on several occasions during the hearing and in her final submission. She also has ongoing concerns that the father has not got over the end of his relationship with her and will seek to interfere in her life if given any opportunity to do so. Support for that latter proposition is found in the materials generally and in particular in the report of the first report writer in 2009.
The parties’ proposals
The father seeks the orders set out in his outline of case document. He seeks that there be equal shared parental responsibility and that the child spend time with him for two weeks commencing on 26 December every year, in Melbourne for one week in the midyear school term holidays, for one week in Queensland in the September school term holidays and by telephone each week, together with special days.
It should be noted that he proposes that the cost of travel be shared between the parties and he also seeks what might be described as usual further orders about the receipt of school reports, restraint of denigration and the like.
The mother’s position is that there should be as little time as possible. Given that she was self-represented, it is in no way surprising that she did not particularly clearly articulate her position, but she sought as little time as possible and preferably two weeks on different occasions per year.
The evidence of the report writer
The report writer, Ms B, stuck by the recommendations that she had made. She confirmed that [X] had thoroughly enjoyed her week in Melbourne with her father in April 2010 and confirmed her recommendation that [X] spend time with her father in Melbourne on two occasions per year, together with weekly telephone time.
She resisted the proposition put to her by counsel for the father that a two-week period of time would be appropriate. She stuck to her view that at this age, a period more than seven days would be excessive.
When cross-examined about the possibility of the father spending time with [X] in Queensland, she said it might be of benefit, but only if the father was able to contain himself. She confirmed that the mother’s first preference would be that the father spend no time with the child, but that she agrees to some. She confirmed that the mother dislikes the father, but has genuine concerns nonetheless for [X] in his care because of his past behaviour. She was, of course, unable to comment as to the father’s mental health and drug use, allegations pressed by the mother in previous affidavit material.
The evidence of Ms B was given in an extremely confident and assured way, entirely consistent with her professional expertise. I accept the conclusions expressed both in her report and in her oral evidence.
Against these introductory factual issues, I turn to consider the matters in the legislation.
Parental responsibility
Although the mother’s affidavit material filed in the past raises issues of family violence in the sense of the father misbehaving towards her by abusing her and the like, there is nothing now pressed that would be such as to displace the presumption of equal shared parental responsibility contained in section 61DA of the Family Law Act 1975 (“the Act”).
In circumstances where the mother would clearly remove the father completely from [X]’s life, were she able to do so, and in circumstances where the father, whatever his limitations, has a clear desire to be involved with the child and obviously loves her and is loved in return, it is plainly appropriate to make an order for shared parental responsibility.
This brings one to determining what is in the child’s best interest in light of the guidance contained in s.60CC of the Act and in the judgment of the Full Court of the Family Court in Goode & Goode [2006] FamCA 1345. I have already identified the competing proposals of the parties. I have already also identified the issues in dispute.
So far as it is necessary to make findings of fact, I would only make the following observations:
a)While allegations as to the father’s mental health and drug use would, if established, be concerning, they are now so historical and have not been significantly pressed that I am satisfied that [X] is not at risk in his care provided only that the time is supervised by his mother.
b)The mother dislikes the father but as I find has in some ways good reason to do so. The father’s violent outbursts and other behaviour in the past, together with his obsessive desire to retain and continue the relationship, must be a very real concern to her.
c)[X] loves both her parents, and would like to spend some more time with her father in Melbourne.
d)I am not satisfied that time should be spent by the father with the child in Queensland. Whether or not he would be able to control himself remains open to question, especially given the interaction he had with Ms B in seeking to, as it were, continue his interrelationship with Ms Maguire, but the one thing that one can say with certainty is it will give rise to very heightened anxiety on the mother’s part and this is not in [X]’s best interests.
There is no question of [X] spending equal time with both parents and neither side seeks it. Nor does either side seek substantial or significant time within the meaning of the Act. Their positions are as I have already articulated them. This then brings us to s.60CC of the Act.
The primary considerations
In the light of the family report of Ms B, it is clear that it is in the best interests of [X] to have a meaningful relationship not only with her mother but with her father. She loves her father and wants to have such a relationship and it is clear that she should.
On the question of physical or psychological harm or abuse, neglect or family violence, the matter is in a sense, as I have already indicated, somewhat more opaque. Nonetheless, given that the mother does not oppose the father spending two weeks with [X] in Melbourne, subject to the presence of his mother and spending the time at her home, one has to say that it must be taken that these are not of sufficient significance to prevent time being spent.
The mother after all loves [X] very dearly and would not be prepared to consent, even reluctantly, to [X] spending time with her father if she really thought [X] was going to come to any harm.
The additional considerations
Section 60CC(3)(a)
The child has expressed views and clearly at that. She liked spending time with her father and wants to do it again. While she is only six, the family report suggests that she is a relatively sophisticated child for her age and her views have been clearly expressed.
Section 60CC(3)(b)
[X] clearly has an excellent relationship with her mother and her mother’s extended family. So far as her father is concerned, she obviously wishes to see more of him and from the uncontradicted evidence given by the father of [X]’s trip to Melbourne in April 2010, she plainly has an ongoing relationship not only with the paternal grandmother but with other members of the family and indeed a former school friend from her time in Melbourne as well.
Section 60CC(3)(c)
The conflict between the parents has been such that neither really has a very well-developed capacity to facilitate and encourage a close and continuing relationship between the child and the other parent. This is far more marked in the case of the mother who has the primary care of [X]. Her evidence was, I regret to say, all too clear. She does not like Mr Banfield. She remembers their time together with disfavour. She reproaches him still for lack of financial support. She will, I fear, unless forced by Court order to do so, do very little in the way of encouraging the relationship between [X] and her father.
Section 60CC(3)(d)
While it is clear that [X] will have some measure of anxiety about being away from her mother, I note that this was not a matter that troubled the report writer at all.
Section 60CC(3)(e)
The problems of airfares have already been sorted out between the parties. There is a practical difficulty with telephone contact, which is that the mother in my view does but little to facilitate it. The Court will formulate orders designed to compel the mother to ensure that the telephone time is not thwarted. I see no reason why time should not be spent on one occasion per week on a Wednesday between 6.00 and 6.30 pm at a landline designated by the mother. Telephone time should also be spent with the father on his birthday, Father’s Day and Christmas Day.
Section 60CC(3)(f)
In the context of the findings already made, this subsection adds nothing. It is clear that the mother is providing, together with her household, a secure and happy environment for [X]. It is also clear that [X] is happy and secure at her grandmother’s home with the grandmother and her father.
Section 60CC(3)(g)
In the context of this case, this section adds nothing.
Section 60CC(3)(h)
This subsection is not relevant.
Section 60CC(3)(i)
Once again I think this matter has already been traversed. Both parents have their strengths and weaknesses and in regards to their responsibilities of parenthood both display certain inadequacies.
Section 60CC(3)(j)
I find that there has been family violence in the sense of the father’s misbehaviour as asserted by the mother but for the reasons I have given it is not of any moment now.
Section 60CC(3)(k)
This subsection is not relevant.
Section 60CC(3)(l)
The orders I make will be the least likely in my opinion to give rise to further litigation. Nonetheless, [X] is only six and her development as the years go by will doubtless require the parties to reconsider whether these orders are sufficient on an ongoing basis. Given her age this cannot be avoided.
Section 60CC(3)(m)
Here one of the relevant considerations in my view is that [X]’s half-sister from Singapore will be in Australia from late December to early January. I think that the order for time spent should be spent from close to 31 December onwards. I will take further submissions from the parties as to what a precise timetable should be.
Other matters
I have already dealt with the time to be spent which should be on two occasions per year in Melbourne only, as recommended by the family report writer. Telephone calls should be once per week, but the father needs to remember that a child of the age of six may well often not wish to talk for any great length of time.
The orders sought by the father as to mutual non-denigration and as to the provision of information relating to the child’s schooling and development are in my view entirely appropriate.
In addition I think it would be in [X]’s best interest for there to be an order requiring the mother to notify the father of any significant health issues that [X] may develop from time to time.
The only other matter outstanding is the father’s application for an order to compel each party to encourage the other party to call them “Daddy” or “Mummy” as applicable.
This sort of order is often sought but is almost incapable of enforcement. It is far more likely than otherwise to lead to far more trouble than it is worth. While I readily understand why the father wants this order, I think it would only guarantee further litigation. That is not in [X]’s best interests. I have no doubt [X] will continue to love her father whatever she calls him.
Conclusion
I have prepared draft orders to give effect to these conclusions and will hear further from the parties when they have had an opportunity to read them and these Reasons for Judgment.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 9 December 2010
ADDENDUM
On 9 December 2010 I handed down my Reasons for Judgment in this matter together with draft orders. I directed the parties to file and serve submissions as to the form of the draft orders on or before 16 December 2010
My chambers have received two handwritten documents, one of which is dated 16 December 2010 directly from Mr Banfield. It appears they have been copied to Ms Maguire. When I made my direction on
9 December 2010 Mr Banfield was legally represented and his solicitor has not filed any notice of ceasing to act
It is sufficient to say that Mr Banfield’s documentation amounts in summary to a series of disagreements with numerous aspects of my Reasons for Judgment, and consequential disagreement with the form of the draft orders
I have received no materials from Ms Maguire at all
In the circumstances, and given the urgency of the matter ([X] is due, failing agreement between the parties, to travel on 31 December 2010 to Melbourne to visit her father), I have decided to make final orders in the form previously circulated as draft orders
Nothing in Mr Banfield’s material persuades me that the draft orders should be altered in any way
Once again because of the urgency of the matter I have simply determined this matter in chambers and these Reasons are designed to explain to the parties how it is that the draft orders have been made as final orders.
I certify that the preceding seven (7) paragraphs are a true copy of the Addendum to the reasons for judgment of Burchardt FM
Date: 21 December 2010
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