Battista & Battista
[2022] FedCFamC2F 778
•15 June 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Battista & Battista [2022] FedCFamC2F 778
File number(s): PAC 3262 of 2021 Judgment of: JUDGE MANSFIELD Date of judgment: 15 June 2022 Catchwords: FAMILY LAW - Parenting – Interim orders – Competing proposals for increases in time with the father including commencement of overnight time – Where Family Report already issued Legislation: Family Law Act 1975 (Cth) ss 60A, 60CC(2), 60CC(2A), 69ZL Cases cited: Goode & Goode [2006] FamCA 1346 Division: Division 2 Family Law Number of paragraphs: 48 Date of last submission/s: 6 June 2022 Date of hearing: 6 June 2022 Place: Parramatta Counsel for the Applicant: Mr Dura Counsel for the Respondent: Ms Petrie ORDERS
PAC 3262 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BATTISTA
Applicant
AND: MS BATTISTA
Respondent
ORDER MADE BY:
JUDGE MANSFIELD
DATE OF ORDER:
15 JUNE 2022
UNTIL FURTHER ORDER, IT IS ORDERED BY CONSENT:
1.That the parties have equal shared parental responsibility in relation to the child, X, born in 2020 (“the child”).
2.That the parties are required to make all decisions about major long-term issues in relation to the child jointly.
3.That the parties are not required to consult the other when making decisions while the child is in their care under this order about issues that are not major long-term issues.
4.That the child live with the Respondent Mother (“the mother”) at all times other than when he is spending time with the Applicant Father (“the father”) in accordance with these Orders.
AND IT IS FURTHER ORDERED:
5.That the father spend time with the child at all times as may be agreed, but failing agreement, as follows:
5.1For a period of 3 months from the date of these Orders:
5.1.1Week 1 (commencing Thursday, 16 June 2022) and each alternate week thereafter: on Thursday from 8am to 3pm; and
5.1.2Week 2 (commencing Thursday, 23 June 2022) and each alternate week thereafter: on Thursday from 8am to 3pm, Saturday from 12pm to 5pm and Sunday 8am to 12pm.
5.2From the date 3 months after the date of these Orders, for a period of 6 months thereafter:
5.2.1Week 1 (commencing 2022) and each alternate week thereafter: on Thursday from 8am to 3pm; and
5.2.2Week 2 (commencing 2022) and each alternate week thereafter: on Thursday from 8am to 3pm and Saturday from 12pm to Sunday 12pm;
5.3From after the period referred to in Order 5.2 above and pending further Order:
5.3.1Week 1 (commencing Thursday, 9 March 2023) and each alternate week thereafter: on Thursday from 8am to 3pm; and
5.3.2Week 2 (commencing Thursday, 16 March 2023) and each alternate week thereafter: on Thursday from 8am to 3pm and Saturday from 8am to Sunday 3pm.
5.4From 8am to 5pm on the Father’s birthday.
5.5From 8am to 5pm on Father’s Day.
5.6From 12pm to 5pm on Good Friday and from 12pm to 5pm on Easter Sunday in 2023, in the Roman Catholic faith.
AND IT IS FURTHER ORDERED BY CONSENT:
5.7On 24 December 2022 from 8am to 12pm.
5.8On 25 December 2022 from 8am to 12pm.
5.9On 01 January 2023 from 8am to 12pm.
5.10From 8am to 12pm on the child’s birthday.
5.11At any other time/s the parties may agree in writing.
6.That, notwithstanding Order 5 above, the child shall spend time with the Mother from 9am to 5pm on Mother’s Day.
7.That each of the parties are to consult with each other prior to arranging any medical appointments for the child so as to provide the other parent with an opportunity to attend all such medical appointments.
8.That the parties advise the other of any change of telephone number or residential address within 24 hours of such change occurring.
9.That the parties encourage and not undermine the child’s relationship with the other party.
10.That each of the parties shall keep each other informed at all times of the names and contact details of any doctors or allied health practitioners either of them takes the child to and authorise any such professional to provide to the mother or the father with any information they might request about the child that is lawful to provide.
11.That the father shall communicate with the child by Zoom video or FaceTime at such times as may be agreed between the parties and failing agreement between the hours of 10:30am to 11:00am each Tuesday. The mother shall facilitate such communication with the father.
12.For the purposes of these Orders changeover shall take place in the carpark of the McDonalds Restaurant at B Street, Suburb C, NSW.
13.That each of the parties are restrained from criticising and/or denigrating the other party or the other party’s family in the presence of or within hearing of the child.
14.That the Father be restrained from bringing X into contact with, or communicating with, his brother Mr D, or permitting anyone else to do so.
15.That both parties forthwith enrol in and complete the Circle of Security parenting course.
16.The matter is listed for directions on 11 August 2022 at 2.15pm before Judge Obradovic.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MANSFIELD:
These are parenting proceedings in relation to the child, X, born in 2020 (“the child”), aged 1 year old.
BACKGROUND
In 2018 the parties married and commenced cohabitation.
In 2020, the child X was born.
The parties separated between April 2020 and May 2020 before resuming their relationship.
In January 2021 the parties separated on a final basis when the father moved out and now lives with his parents.
In January 2021 the mother moved out of the former matrimonial home and now lives with her parents.
On 16 June 2021 the father commenced parenting and property proceedings.
Subsequent to separation, and until Orders were made on 17 August 2021, the father spent little time with the child and only in accordance with the mother’s wishes.
On 17 August 2021, the parties obtained orders by consent which finalised the property proceedings and on an interim basis provided for time with the father:
(a)Until 14 March 2022, on two occasions per week for 2 hours on each occasion;
(b)From 14 March 2022, on two occasions per week for 4 hours on one occasion and 2 hours on the other; and
(c)Time on Christmas Day and Father’s Day.
On 18 November 2021, the parties reached further agreement on an interim basis which provided:
(a)That the parties equally share parental responsibility;
(b)That until 5 January 2022, the child’s time with the Father occur on two occasions per week for 4 hours on one occasion and 3 hours on the other occasion;
(c)Various periods on special occasions of up to 5 hours;
(d)From 5 January 2022 on two occasions per week for 4 hours on one occasion and 5 hours on the other occasion.
On 29 March 2022 a Family Report was completed.
The matter has not been listed for final hearing.
MATERIAL
On 6 June 2022 the matter came before me for interim hearing. The material I have taken into account for the father is:
(a)Initiating Application filed 16 June 2021;
(b)Notice of Risk filed 16 June 2021;
(c)Affidavit of Mr Battista filed 16 June 2021 as to paragraphs 1 to 8 and 24 to 47 only;
(d)Affidavit of Mr Battista filed 12 August 2021;
(e)Affidavit of Mr Battista filed 3 June 2022; and
(f)Family Report dated 29 March 2022.
The material I have taken into account for the mother is:
(a)Response filed 5 August 2021;
(b)Notice of Risk filed 5 August 2021.
(c)Affidavit of Ms Battista filed 5 August 2021; and
(d)Family Report dated 29 March 2022.
PRINCIPLES
This is an interim hearing and accordingly, shorter reasons are permitted pursuant to section 69ZL of the Family Law Act 1975 (‘the Act’).
The Full Court in Goode & Goode [2006] FamCA 1346 recognised that interim cases, such as this, can be difficult as there are often conflicting facts and disputes between the parties as to what constitutes the best interests of the child. The Full Court sets out at paragraphs 81-82 the approach to be adopted in interim parenting matters:
(a)Identify the parties competing proposals;
(b)Identify the issues in dispute;
(c)Identify any agreed or uncontested relevant facts; and
(d)Consider the matters in section 60CC of the Act and make findings if possible.
THE PARTIES’ COMPETING PROPOSALS
Orders 1-4, 5.7-5.11 and 6-15 of the orders sought by the father are made by consent.
The parties envisage interim orders being required for the next 15 month period up to and then from 2023 when X turns 3 years old. By that time, or at least prior to him turning 4 years old, the matter ought to have reached final determination.
The mother proposes:
(a)A weekly regime;
(b)For the next 9 months until X turns 2 years old, 7 hours on Thursdays and 7 hours on Saturdays.
(c)From age 2½ to 3, an additional 4 hours on Tuesdays.
(d)From 3 years old, retain the 4 hours on Tuesdays, and commence an overnight Friday to Saturday.
(e)On the following special days:
(i)For Father’s day and the father’s birthday, the mother proposes 8am to 4pm.
(ii)Over Easter, the mother proposes from 12pm to 5pm on Good Friday and from 12pm to 5pm on Easter Sunday in 2023, in the Roman Catholic faith.
(f)The mother seeks the following further orders:
(i)That the father’s time with the child is contingent on the father not working and in the event the father is required to work he is to notify the mother at least 24 hours prior to his time.
(ii)That the parties engage with a counsellor at E Service to assist them with developing a framework for communication, co-operation and problem solving.
(iii)That the father attend on therapy to improve his understanding of how his behaviour might impact on others.
(iv)That the father forthwith enrol in and complete an anger management course and a parenting after separation course and provide the mother with confirmation of completion of each.
The father proposes:
(a)A fortnightly regime;
(b)For the next 3 months until 2023, a lesser amount of time every Thursday, but all day Saturday and all day Sunday every alternate weekend.
(c)From 2023 when X is 2 years old, keeping Thursdays every week and commencing overnights with every alternate Saturday to Sunday.
(d)From 2½ years old, keeping Thursdays every week and adding an additional overnight every alternate Saturday to Monday.
(e)On the following special days:
(i)For Father’s day and the father’s birthday, the father proposes 8am to 5pm.
(ii)Over Easter, the father proposes from 12pm on Good Friday to 5pm on Easter Sunday in 2023, in the Roman Catholic faith.
THE ISSUES IN DISPUTE
The issues in dispute are:
(1)What time the child spends with the father for the next 15 month period up to and then from 2023 when X turns 3 years old;
(2)Whether X’s time with the father on Father’s Day and the father’s birthday be from 8am until 4pm, or until 5pm.
(3)Whether X’s time with the father over Easter 2023 be:
(a)From 12pm to 5pm on Good Friday and from 12pm to 5pm on Easter Sunday; or
(b)From 12pm on Good Friday to 5pm on Easter Sunday.
(4)Whether the further orders sought by the mother should be made.
RELEVANT FACTS, MATTERS AND CIRCUMSTANCES
The mother describes that the parties sometimes argued during their marriage wherein the father would denigrate her and her family. She describes two incidents in early 2019 of heated arguments. She further describes another incident of a heated argument in early 2020 whilst pregnant. The mother details another heated argument in mid-2020, and another in late 2020 which included an element of physicality and property damage. In January 2021 the parties separated when the father moved out.
The mother deposes that the father was critical of her parenting of X and would compare her unfavourably to his own mother. She says up to separation she almost solely provided care for X.
The mother describes a post separation regime whereby she has provided for opportunities for X to spend time with the father but the father has complained about the extensive conditions imposed by the mother. The mother gives a detailed description of her management of X’s needs, in particular his diet and eating regime, and does not have confidence that the father has the ability nor humility to learn it and meet X’s needs.
The mother’s tender bundle contained correspondence between solicitors which is submitted as evidence of the father’s argumentative, combative and inflexible approach. It is evidence of a combative approach, and it is reasonably understood how it’s effect on the mother may be hard. However, it is also evidence of the father’s commitment to the promotion of his relationship with his son and how important that is to him. The circumstances behind the correspondence are not grave in nature and very much in the context of mid-litigation. That sort of correspondence is unhelpful, but situational.
The father says he assisted the mother with day-to-day care of X pre separation. He says that all time since separation has been determined and conditioned by the mother. He says he has listened to and learned from the mother of X’s eating and sleeping requirements. He has attended most of X’s medical and speech therapy appointments with the mother. He seeks a more meaningful involvement in X’s life which he says the mother is preventing.
He completed a Parenting After Separation course in mid-2021. He has enrolled in and commenced the Circle of Security course after reading the recommendation in the Family Report for him to do so.
SECTION 60CC CONSIDERATIONS
In determining interim parenting matters, section 60A of the Act provides that I must regard the best interests of the child as being the paramount consideration. The two primary considerations, as set out in section 60CC(2) of the Act are: the benefit to the child of having a meaningful relationship with both parents; and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I am required pursuant to section 60CC(2A) of the Act to give greater weight to the second of those two primary considerations. Whilst family violence as between the parties during the relationship is a live issue, neither party alleges that X is at risk of being subjected to or exposed to family violence in either party’s care. For the purposes of this application, the benefit to the child of having a meaningful relationship with the father is the leading concern.
The child is too young to have expressed any views.
The child’s relationship with his mother is as his primary carer. The child’s relationship with the father has been limited in its development by the reality of the circumstances of an acrimonious separation when the child was still young at 4 months old.
The father has sought to maximise his opportunity to spend time with and communicate with the child. His efforts have at times been perceived by the mother as unnecessarily or unreasonably pressurised. The parents getting this balance right is critical for X. What is required of them and the reasons why are set out in crystal clear terms at paragraphs 142-145 of the Family Report.
That the child’s circumstances are going to change is inevitable where both parties’ proposals provide for increases in time with the father and the corresponding increases in time where the child is separated from the mother.
There is no evidence as to any practical difficulties or expense of either parties’ proposal. In relation to changeovers, as sought by both parties, an order is made for all changeovers to occur at McDonalds, Suburb C. The parties may consider changeovers at the mother’s or the father’s residence at least at the end of time on Saturdays and the commencement of time on Sundays which would likely assist X with the transition to overnights.
The mother holds concerns about the father’s capacity to provide for the needs of the child. This is understandable in the context where the father has not had the opportunity to demonstrate otherwise and the child does have some particular needs. The mother however may take some comfort in that the father’s attitude towards the child, and to the responsibilities of parenthood, is credible. This is demonstrated by the father’s attendance at most medical appointments, affidavit evidence as to his awareness of X’s particular physical needs and his enrolment and completion in courses recommended by the Family Report author.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child is an important consideration in this matter. The Family Report is written for the purposes of final hearing, not for the next 15 month period leading into a final hearing. Recognising that the commencement of overnights is against the recommendations of the Family Consultant, or at least at the very front end of the recommended time of “around three years of age” (Family Report, paragraph 149), it would be of considerable assistance by the time of the final hearing for there to have been some observable history of overnight time, how the parties have managed and supported it, and how X has coped with it. Thus, this arrangement is able to provide for final orders that are established on a course of conduct rather than a speculative basis.
It is a finely balanced and difficult interlocutory case. Much will turn on the parents’ ability to objectively monitor X’s progress through increases of time with the father. It will require a less than mathematical or quantum ‘rights’ based approach from the father, and a more encouraging and supportive and compensatory approach from the mother. How well, or not, they separately and together handle this will be a key feature of the final hearing. The extent to which the parties use the orders as a guide, not a parental right, to assist with the promotion of time through overnights will be key. A practical example is that in the event that X is not coping with the overnight time away from his mother, either situationally or inherently, then the parents’ ability to communicate and adjust will be cogent evidence as to the confidence in their ability to co-parent into the future.
FINDINGS ON ISSUES IN DISPUTE
(1)What time the child spends with the father for the next 15 month period up to and then from 2023 when X turns 3 years old.
The mother’s proposal largely, but not completely, aligns with the Family Consultants recommendations. Where the mother departs from the recommendations is that the mother does not want to provide for 2 consecutive days prior to the commencement of the overnights, such as changing the Thursday to a Wednesday or Friday at about the January 2023 mark. The mother cites her reasoning for this as her working days are Monday to Wednesday and Fridays are her special time with X.
A disadvantage to the mother’s proposal is that from 2023, when X is 2½ years old, he will be changing over every Tuesday, Thursday and Saturday. From 2023 at 3 years old, the changeovers will be Tuesdays and then Friday drop off and Saturday pick up after the overnight.
The mother seeks to rely on the recommendations in support of her proposal, but undermines it by not abiding to its call for reducing fragmented time.
The father’s proposal seeks overnight time to commence sooner than recommended by the Family Consultant and the mother. An advantage to the father’s proposal is that the fortnightly regime sets up a structure that provides for increases in time towards longer days and consecutive days towards ultimately consecutive overnights on weekends, all with a lesser number of changeovers and disruption compared to trying to build equivalent time within a weekly regime. It is also more conducive to providing for substantial and significant time with both parents.
A disadvantage to the father’s proposal is that it contains insufficient transition into large blocks of time where the child would be away from the mother.
The orders provide for a balance between the two proposals. Principally, a regime that provides for increases in time towards consecutive days and overnights on weekends providing for substantial and significant time with the father, whilst minimising blocks of time away from the mother.
(2)Whether [X]’s time with the father on Father’s Day and the father’s birthday be from 8am until 4pm, or until 5pm.
Father’s day and the father’s birthday are special days as between the father and the child. The mother’s reasoning for resisting the end time of 5pm is that the child’s routine is to be in bed by 7pm and 4pm allows for that whereby 5pm doesn’t. On balance, the benefit to the child’s relationship with the father by having the extra hour on those special days with the father is more likely to outweigh the possibility that his routine might be disrupted on those two days only.
(3)Whether [X]’s time with the father over Easter 2023 be:
(a)From 12pm to 5pm on Good Friday and from 12pm to 5pm on Easter Sunday; or
(b)From 12pm on Good Friday to 5pm on Easter Sunday.
The benefit to the child of having a meaningful relationship with the father is the leading concern in this application. The manner in which that is best promoted is by providing for increases in time towards consecutive days and overnights on weekends, whilst minimising blocks of time away from the mother. The father’s proposal is inconsistent with that structure. There is no call for it but for the existence of the Easter period which is a holiday that X at 2½ years old will arguably have little understanding of. However being away from his mother for over 2 days, which does not occur at any other time, may cause stress and undermine the structure.
(4)Whether the further orders sought by the mother should be made.
I decline to make an order which amounts to an extant injunction terminating all time with the father in the event he gets a job. On the contrary, that would likely be a pro-social and positive event. The father lives with and enjoys the support of his parents as does the mother. It is but a fact of life that the parties will each need to contend with life matters going forward.
I decline to make orders that the parties engage with a counsellor, or compelling the father to attend therapy or complete an anger management course. Firstly, they are insufficiently particularised and there is insufficient evidence to support the orders. Secondly, unless they are attended voluntarily, particularly where they go to behaviour beyond solely parenting and where such behaviour is alleged and disputed, the benefits are questionable. The father has already completed a Parenting After Separation course and is enrolled in the Circle of Security Course.
TABLE
The previous orders, the family consultant recommendations (in the context of final orders), the mother’s proposal, the father’s proposal, and the orders made are summarised in the following timeline against the child’s age in months.
Child’s Age Previous Orders 2020 0 Aug 2021 11 Thu 10-12.
Sat 10-12.Nov 2021 14 Thu 8-11.
Fri 8-11.
Sat 8-12.Jan 2022 16 Thu 8-12.
Sat 8-15.Family Consultant Father’s proposal Mother’s proposal Orders Jun 2022 21 Thu 8-12+.
Sat 8-15.(W1) Thu 8-12.
(W2) Thu 8-12.
Sat 8-17.
Sun 8-17.Thu 8-15.
Sat 8-15.(W1) Thu 8-15.
(W2) Thu 8-15.
Sat 12-17.
Sun 8-12.2022 24 Overnights commence.
(W1) Thu 8-12.
(W2) Thu 8-12.
Sat 8 – Sun 17.Overnights commence.
(W1) Thu 8-15.
(W2) Thu 8-15.
Sat 12 – Sun 12.Mar 2023 30 Tue 8-12.
Thu 8-12+.
Sat 8-15.(W1) Thu 8-12.
(W2) Thu 8-12.
Sat 8 – Mon 8.Tue 8-12.
Thu 8-15.
Sat 8-15.(W1) Thu 8-15.
(W2) Thu 8-15.
Sat 8 – Sun 15.(About) Jun 2023 Tue 8-12.
Wed or Fri 8-12+.
Sat 8-15.2023 36 Overnights commence.
Tue 8-12.
Fri morn – Sat aft.Overnights commence.
Tue 8-12.
Fri 12 – Sat 12.2024 48 Tue 8-12.
Alt weeks:
Fri morn – Sun aft2025 60 School starts.
Thu 15-18.
Alt weeks:
Fri morn – Mon morn2026 72 Alt weeks:
Thu aft – Mon morn2027 84+ (5/14)
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansfield. Associate:
Dated: 15 June 2022