BARNSLEY & GAYNOR

[2016] FCCA 2217

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARNSLEY & GAYNOR [2016] FCCA 2217

Catchwords:
FAMILY LAW – Parenting – interim orders – very young child – parental disharmony – child to live with mother – child to spend time with father on a graduated basis.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA

Cases cited:

Slater & Light [2011] FamCAFC 1at [45]

Mazorski & Albright [2007] FamCA 520 at [26]
Salah & Salah [2016] FamCAFC 100 at [35]
MRR & GR [2010] HCA 4 at [15]

Goode & Goode (2007) 36 Fam LR 422, (2006) FLC 93-286

McCall & Clark [2009] FamCAFC 92 at [121]
Keats & Keats [2016] FamCAFC (delivered on 16 August 2016)
SS v AH [2010] FamCAFC 13

Applicant: MR BARNSLEY

Respondent: MS GAYNOR

File Number: PAC 2546 of 2016

Judgment of: Judge Obradovic

Hearing date: 24 August 2016

Date of Last Submission: 24 August 2016

Delivered at: Parramatta

Delivered on: 31 August 2016

REPRESENTATION

Counsel for the Applicant: Ms Petrie

Solicitors for the Applicant: Blackman Legal

Appearing for the Respondent: Ms Ruggero

Solicitors for the Respondent: Vizzone Ruggero Twig Lawyers

BY CONSENT, PENDING FURTHER ORDER THE COURT ORDERS THAT:

1. The parents shall have equal shared parental responsibility for the child X born on (omitted) 2015.

2. The child shall live with the mother.

THE COURT FURTHER ORDERS THAT:

1. Until 31 December 2016, the child shall spend time with the father:

   (a)each Monday, Tuesday and Thursday from 8.30am to 4pm;

   (b)commencing Saturday 27 August 2016, each alternate Saturday from 11am to 4pm;

   (c)on Father’s Day from 11am to 4pm;

   (d)from 2pm on 25 December 2016 until 2pm on 26 December 2016; and

   (e)at all other times as agreed to between the parents in writing.

2. From 1 January 2017 until 12 June 2017, the child shall spend time with the father:

   (a)from 8.30am each Monday to 4pm Tuesday;

   (b)each alternate Saturday from 11am to 11am on Sunday; and

   (c)at all other times as agreed to between the parents in writing.

3. After the child turns two, the child shall spend time with the father:

   (a)from 8.30am each Monday to 4pm Tuesday;

   (b)each alternate Saturday from 9am to 4pm Sunday; and

   (c)at all other times as agreed to between the parents in writing.

4. Notwithstanding any other order the child shall spend time with mother on Mother’s Day from 11am to 4pm.

5. At the commencement of the time the child is to spend with the father, the father shall collect the child from the mother’s residence.

6. At the conclusion of time the child is spending with the father, the mother shall collect the child from the father’s residence.

7. The parents shall, as soon as reasonably practicable but no later than six months from the date of these orders, enrol in a parenting course such as Triple P with Parenting NSW or Keeping Kids in Mind with Catholic Care and complete such course at the first available opportunity.

8. Each party keep the other informed of the child’s health and any health issues and each party shall immediately advise the other in the event that the child suffers serious illness or injury or is in need of medication or medical attention while he is in their respective care and control. 

9. The matter is listed for further directions at 11.30am on 13 February 2017.

10. Reasons for Judgment are reserved to be published on a date to be advised.

THE COURT NOTES:

1. The mother’s undertaking that she will not leave the child for more than 30 minutes in the sole care of the maternal grandmother, Ms Y.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2546 of 2016

MR BARNSLEY

Applicant

And

MS GAYNOR

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are the reserved Reasons for Judgment which was handed down on 24 August 2016, following an interim hearing for parenting orders in respect of X born on (omitted) 2015.

2. The father is the Applicant in the proceedings and the mother is the Respondent.

3. The father relied upon the following documents and evidence:

   a)Initiating Application filed 3 June 2016, although during the hearing, the father consented to the order for time between him and the child as made;

   b)Affidavit of Mr Barnsley filed 22 August 2016;

   c)Affidavit of Mr Barnsley filed 1 July 2016;

   d)Affidavit of Mr Barnsley filed 3 June 2016; and

   e)Notice of Risk filed 3 June 2016.

4. The mother relied upon the following documents and evidence:

   a)Affidavit of Ms Gaynor filed 17 August 2016;

   b)Proposed Short Minute of Order handed up to the Court on 24 August 2016.

The Law

1. The central enquiry is for the Court to determine the outcome that will be best for the child the subject of these proceedings.

2. Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

3. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

4. In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child.

5. The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]

   [1] see for example Slater & Light [2011] FamCAFC 1at [45]

6. In applying the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence than to the benefit to the child of having a meaningful relationship with both of the parents.

7. It has been held that a meaningful relationship “is one which is important, significant and valuable to the child”:Mazorski & Albright[2] and cited with approval by the Full Court in McCall & Clark.[3] The focus is not on the relationship as such but on the benefit the relationship might have for the child.[4]

   [2] [2007] FamCA 520 at [26]

   [3] [2009] FamCAFC 92 at [121]

   [4] Ibid at [122]

8. In addition, in considering what order to make the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence:[5] The Court may include[6] in the order any safeguards that it considers necessary for the safety of those affected by the order.

   [5] S.60CG(1)(b); see the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35]

   [6] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)

9. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests. In interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[7]

   [7] s61DA(3)

10. In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the child spending equal time with the parents.  If the Court finds that it is not in the child’s best interests and reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[8]

    [8] MRR v GR [2010] HCA 4 at [15]

11. The Full Court in Goode v Goode[9] mandated that this legislative approach must be followed in all parenting cases and in particular set out the procedural steps to be followed on an interim application.

    [9] (2007) 36 Fam LR 422, (2006) FLC 93-286

12. As stated by the Full Court in Keats & Keats [2016] FamCAFC (delivered on 16 August 2016) at [9]

    …the principles that emerge from cases such as SS v AH [2010] FamCAFC 13, [are] namely, that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.

Competing Proposals

1. Although initially commenced in the Family Court at Sydney, the matter was transferred to the Federal Circuit Court at Parramatta on 5 July 2016, and was listed for directions on 24 August 2016.

2. The father in his Initiating Application sought orders for the matter to be heard on an urgent basis and he pressed the Court for interim orders on 24 August 2016.

3. In summary, the father initially sought orders for the child to live with the mother and to spend time with him in week one from 9am Sunday to 6pm Tuesday, and in week two from 9am Monday to 6pm Tuesday. The father sought orders for time on special occasions and various restraints and specific issue orders. As indicated above, the father ultimately consented to the orders for time as made by the Court. 

4. In summary, the mother sought orders for the child to live with her and spend time with the father:

   a)Each Monday from 8.30am to 4pm;

   b)Each Wednesday from 1pm to 4pm;

   c)On the first Saturday of each month from 8.30am to 4pm; and

   d)Every other Saturday from 1pm to 4pm.

5. The mother also sought a number of orders for the provision of information by the parties.

Uncontested Relevant Facts

1. The parties were never in a relationship.

2. There is one child of the parties, X, born on (omitted) 2015.

3. The child was conceived by the parties following an agreement between them to have a child together, as each desired to be a parent.

4. The parties lived together, although not as a de-facto couple, from either mid-April or early June 2015.

5. The parties no longer live together.

6. The child has always lived in the home of the mother.

7. Since 5 July 2016 the child has spent only a very limited number of hours with the father.

Section 60CC Factors

Views of the Child

1. The child is a baby and is far too young for his views, which are in any event unknown, to be given any weight.

Nature of the child’s relationships with her parents and significant others

1. The mother’s evidence is that she is the child’s primary carer and that the child has never been cared for overnight by the father.

2. The father’s evidence is that both parties shared the care of the child essentially on an equal basis while they were living in the same house, and that they assisted each other by ensuring their individual work commitments fitted in around the care of the child.

3. The parents each assert that the child has a close bond with them. 

4. The mother lives with the maternal grandmother who, together with other members of the mother’s family, provides care for the child while the mother is at work.

Parent’s involvement with decision making, spending time and communicating with the child and Maintenance of the child

1. There is significant conflict between the parents in respect of decision making and spending time with the child. Each of them seeks to be involved.

2. There is no evidence of financial support of the child but each of the parents is a professional with flexible working arrangements in place.

Likely effect of change and practical difficulty of spending time

1. The mother’s evidence is that she is the child’s primary carer. The mother says that the father lived in her home until December 2015 but notwithstanding this that the child has never been solely cared for overnight by the father; the mother was always present.

2. The mother says to the Court she still breast-feeds the child and that because of this the child cannot spend any overnight time with the father, in addition to the father never having had the care of the child overnight. The mother did concede in submissions that the child is bottle fed at times and that he is on solids.

3. As noted earlier in these Reasons, the father’s evidence is that both parties shared the care of the child essentially on an equal basis while they were living in the same house and that they assisted each other by ensuring their individual work commitments fitted in around the care of the child.

4. The father says he moved out of the mother’s home in about May 2016 and that until then there was an arrangement where either one or the other would sleep in the same room as the child while the other parent would sleep in the ‘storeroom’.

5. The father says that while the mother is still attempting to breast feed, she has had difficulties with breast feeding from very early on and the child was introduced to formula soon after his birth. The child is on solids.

6. There is a factual dispute between the parties about how exactly the child feeds but the Court accepts that the mother wishes to continue breastfeeding and is attempting to do so. Annexed to the mother’s Affidavit were various articles about the benefits of breastfeeding. The Court does not accept such articles as probative evidence in respect of this issue.

7. One of the articles titled “The New Science of Mother-Baby Bonding” refers to a number of studies which have been conducted, supporting the theories of “Chopra M.D. the endochronologist turned mind-body-medicine guru”. Those theories are referred to as “ground breaking new parenting research”, when really on their face they are a regurgitation of the importance of establishing a close attachment to a child. The article while headed “Mother-Baby Bonding” discusses, inter alia, the importance of “physical and emotional affection a child receives”. Such learning does not appear to be gender specific. It is the physical and emotional connection which is important for the child inferentially with both of his parents. As such, a very young child must be afforded the opportunity to develop such connections through loving and nurturing relationships with both parents.

8. No explanation was provided by the mother why overnight time with the father and her continued breast-feeding of the child were mutually exclusive.

9. The mother’s Affidavit while very lengthy, omitted important information about her working hours and the child’s routine.

10. While submitting to the Court that the child required routine, the orders which the mother proposed do not provide a great deal of routine for the child.

11. The Court understands that the mother works five days per week; on Mondays from 9.30am to 2pm, and on Tuesdays to Fridays from 8.30am to 1pm. The child is looked after by members of the mother’s extended family while the mother is at work. The child was previously spending time with the father on some of the days the mother was working but that arrangement was stopped by the mother – she says because the father threatened to retain the child.

12. The father’s work is flexible and he is required to be in the office on Wednesdays and Fridays.

13. There has been significant change and upheaval in the child’s routine in the first 14 months of his life. There does not appear to be any settled routine at present, or at least the parties are unable to agree in their evidence as to what that routine might be.

14. There is no practical difficulty with the child spending time with either of his parents.

Capacity to provide for child’s needs and the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. Both parents are able to meet the child’s physical needs. There is no evidence which would indicate that either parent is unable to meet the child’s emotional needs.

2. It appears to the Court that the mother and father have different parenting styles which gives rise to some of the parental conflict. Likewise, each of the parents appears to think that he/she knows best and there hasn’t been a great deal of co-operation between them.

3. The parents would both benefit from attending at least one parenting course with a view to learning how to move towards developing and maintaining a better co-parenting relationship and being respectful towards each other.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents; if the child is an Aboriginal

1. The mother is a (occupation omitted) and works part-time.

2. The father is a (occupation omitted) and works part-time.

3. There is no evidence about either of the parents’ cultural background. 

Family Violence

1. There is a current interim Apprehended Violence Order, to which the mother consented without admission. The incident to which the order relates occurred when the parties could not agree about the best care arrangement for their child. It is regrettable that things came to a head in the manner described in each of the parties’ Affidavits (albeit differently so).

2. Neither parent suggests or alleges an unacceptable risk of harm to the child.

3. While there are some allegations of poor behaviour by each of the parents, the evidence does not suggest that such behaviour would, once tested, necessarily fall within the definition of family violence.

4. Neither of the parties seeks an order for sole parental responsibility on the basis of their allegations of what might loosely be termed “family violence”.

Institution of further proceedings and other relevant matters

1. These are only interim orders and it is likely that if the matter proceeds to final hearing, there will be a time period of at least some twelve months before the matter is decided on a final basis.

Primary Considerations

1. There can be no doubt that the child benefits from having a meaningful relationship with both of his parents.

2. The child is yet to fully develop his important relationships and he should be afforded every opportunity to do so.

3. Due to his tender age and the fact that he has not, at least since May 2016, spent any overnight time with the father and that he is still being breastfed, a gradual introduction of time moving to overnight time is in the child’s best interest.

Parental Responsibility[10]

[10] S61DA

1. The father sought an order for equal shared parental responsibility.

2. The mother did not seek any order for parental responsibility but submitted that the presumption of equal shared parental responsibility applied. She ultimately consented to an order for equal shared parental responsibility.

3. An order for equal shared parental responsibility is made.

4. Baby X is only 14 months old and the parents’ inability to agree and the conflict which has arisen to date does not bode well for future co-parenting. The Court is hopeful that the parties who are both intelligent professionals can learn to work together very quickly.

5. Having regard to the best interest considerations in s60CC as discussed above, an order for equal time or significant and substantial time is not in the child’s best interest.

Conclusion

1. In all of the circumstances and for all of the reasons set out above, it is in the child’s best for orders to be made as set out at the forefront of these reasons.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 31 August 2016