Beletti and Beletti

[2017] FamCA 451

FAMILY COURT OF AUSTRALIA

BELETTI & BELETTI [2017] FamCA 451

FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Where the parties have equal shared parental responsibility of the child – Consideration as to whether the child spend equal time or substantial and significant time with each of the parties – Court finds that a week-about arrangement would not be in the child’s best interests – Orders made for the child to spend time with the father in accordance with a pattern previously established by the parties prior to the mother’s unilateral suspension in April 2017 – Orders made will result in the child spending substantial and significant time with both parents.

Family Law Act 1975 (Cth)

APPLICANT: Ms Beletti

RESPONDENT: Mr Beletti

FILE NUMBER: SYC 3179 of 2017

DATE DELIVERED: 29 June 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 21 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Murphy

SOLICITOR FOR THE APPLICANT: Slater & Gordon Lawyers

COUNSEL FOR THE RESPONDENT: Ms Cantrall

SOLICITOR FOR THE RESPONDENT: HK Lawyers

Orders

1. Pending further Order, the child B born on … 2012 (“the child”) will spend time with the father as follows:

   Week 1

   1.1from 9.30 am on Saturday until 9.30 am on Sunday commencing on 1 July 2017 and

   1.2from the conclusion of daycare on Thursday until 9.30 am on Saturday and

   Week 2

   1.3from 9.30 am on Sunday until the commencement of daycare on Monday and

   1.4from the conclusion of daycare on Tuesday until the commencement of daycare on Thursday.

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 Beletti & Beletti 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 SYDNEY

FILE NUMBER: SYC 3179  of 2017

Ms Beletti

Applicant

And

Mr Beletti

Respondent

REASONS FOR JUDGMENT

The proceedings

1. Ms Beletti and Mr Beletti are the parents of B (the child), who was born in 2012 and is now aged four years.  These proceedings concern interim parenting arrangements for the child.

2. To their credit, the parties agreed on all parenting issues other than the time which the child should spend with the father.  On 21 June 2017, at the interim hearing, I made the following orders by consent:

   1.By consent and pending further Order, Orders and notations are made in accordance with paragraphs 1, 2 and 4 to 15 of a document dated 21 June 2017, filed herein and set out hereunder:

   “1.     That the parties have equal shared parental responsibility for the child, [B] born … 2012.

   2.     That [the child] shall live with the mother.

   3.     (omitted)

   4.     That the parties do all things to have [the child] attend [C] Day Care Centre located at [D Street, Suburb E] forthwith.

   5.     That the parties not criticise or denigrate the other party or the other party’s family in the presence of or within hearing distance of the child.

   6.     That within 24 hours of receipt of a request in writing to do so, the father undertake (by provision of urine screen in accordance with the Australian/NZ Standard 4308:2001) urinalysis for drug screening and/or CDT testing as requested by the solicitor for the applicant not more than once each month and provide copies of the results of the tests to the solicitor of the applicant within 48 hours of receipt of same.

   7.     In the event that the father provides a urinalysis test result or CDT test result that is positive for drugs or alcohol the child’s time with the father will cease forthwith until further Order of the Court.

   8.     That until further Order, the parties and their servants and agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child from the Commonwealth of Australia

   AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the name of the said child [B] (a male) born on … 2012] on the Watch List in force at all points of arrival and departure by air or sea in the Commonwealth of Australia and maintain the child’s name on the Watch List until the Court orders its removal.

   9.     That the husband undertakes on a without admissions basis to not consume alcohol or use recreational drugs in the 24 hour period prior to spending time with the child and whilst the child is in his care.

   10.    That both parties are to consult each other prior to arranging and/or cancelling an appointment with the child’s paediatrician namely, [Dr F], and that both parties attend such appointments with the child and be at liberty to bring a family member to the appointments.

   11.    That both parties are to consult each other prior to arranging and/or cancelling any appointments with the child’s treating medical practitioners and that both parties are at liberty to attend such appointments.

   12.    That the child continue to attend at [G Health] for occupational therapy and speech therapy on an alternating weekly basis on Thursdays at 4.30 pm.

   13.    It is noted that the parties agree to attend Family Therapy and the mother shall provide the father with three (3) names of family therapists within 14 days of the date of these Orders and the father shall select one of the family therapists within a further 14 days and that the parties shall equally share the cost of such therapy.

   14.    That the child spend additional time with the father:

   a.from 5.00 pm Christmas Eve until 5.00 pm Christmas Day in odd-numbered years

   b.from 5.00 pm Christmas Day until 5.00 pm Boxing Day in even-numbered years.

   c.on Father’s Day from 5.00 pm the day preceding Father’s Day until 7.00 pm Father’s Day and that any provision for time under this Order that is inconsistent with this paragraph be suspended so as to facilitate time under this paragraph.

   d.On the father’s birthday, if [the child] is not already spending time with the father:

   i.if a school day from 2.30 pm or after school until 7.00 pm

   ii.if a non-school day from 9.00 am to 7.00 pm.

   e.during [Orthodox] Easter:

   i.on [Orthodox] Easter Saturday from 5.00 pm
   until 10.00 am Greek Easter Sunday in
   even-numbered years

   ii.on [Orthodox] Easter Sunday from 10.00 am until 3.00 pm in odd-numbered years.

   15.    That notwithstanding any Orders herein, that the child be in the mother’s care:

   a.from 5.00 pm Christmas Eve until 5.00 pm Christmas Day in odd-numbered years

   b.from 5.00 pm Christmas Day until 5.00 pm Boxing Day in even-numbered years

   c.on Mother’s Day from 5.00 pm the day preceding Mother’s Day until 7.00 pm Mother’s Day and that the any provision for time under this Order that is inconsistent with this paragraph be suspended so as to facilitate time under this paragraph

   d.on the mother’s birthday:

   i.if a school day from 2.30 pm or after school until 7.00 pm

   ii.if a non-school day from 9.00 am to 7.00 pm

   e.during [Orthodox] Easter:

   i.on [Orthodox] Easter Saturday from 5.00 pm
   until 10.00 am on Greek Easter Sunday in
   odd-numbered years

   ii.on [Orthodox] Easter Sunday from 10.00 am until 3.00 pm in even-numbered years.”

   2.Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

   3.Judgment is reserved to a date to be fixed in relation to the remaining interim issues listed today.”

3. The applicant mother then sought orders that the child spend time with the father from 9.00 am on Saturday until 5.00 pm on Sunday in each alternate week and from the conclusion of daycare on Wednesday to the commencement of daycare on Thursday in every other week.  The respondent father sought the following orders:

   5.That until further order, the father spend time with the child in a
   2-week cycle as follows:

   (a)(i)In week 1, from after day care Tuesday where the father will pick up the child until the commencement of day care Friday morning where the father will drop off the child.

   (ii)In week 2, from after day care Thursday where the father will pick up the child until the commencement of day care Monday morning where the father will drop off the child.

   …

   6.Other than the collection of drop-off of the child by the father at day care/school, changeover shall occur at the father’s residence.

   …”

Background

1. The mother and the father, who are aged 42 and 40 respectively, began to live together in January 2011 and married later that year.  They separated on 12 June 2016, when the father left the former matrimonial home.

2. The father deposed that the child spent time with him after the separation as follows:

   42.From 12 June 2016, onwards (after separating from [Ms Beletti]), I had spent significant time with [the child] as follows:

   (a)from about 12 June 2016 through to early August 2016, whilst I was temporarily living at my mother’s home, [the child] was in my care between 2 to 3 nights each week, including weekends;

   (b)from about 12 August 2016 to 29 January 2017 (with slight variations in the days and nights and times that [the child] spent with me along the way, to accommodate [Ms Beletti’s] wishes and timetables that she presented me with firstly at mediation in October 2016 and then in late November 2016), [the child] spent in general 3 days and 3 nights with me each week, including weekends as per the timetable set by [Ms Beletti]; and

   (c)On 30 January 2017, [Ms Beletti] placed a further timetable in [the child’s] schoolbag.  Annexed hereto and marked with the letter E is a copy of the timetable.  Since this time, up until 29 April 2017, [the child] spent the following time with me, as set out below:

   Week 1

   (a)from 9:30 am Saturday to 9.30 am Sunday, ([Ms Beletti] would deliver [the child] to my home on Saturday morning and collect [the child] from my home on Sunday morning); and

   (b)from the conclusion of daycare on Thursday afternoon to 9:30 am Saturday ([Ms Beletti] would collect [the child] from my home Saturday morning);

   Week 2

   (a)from 9:30 am Sunday morning to the commencement of [the child’s] daycare on Monday morning ([Ms Beletti] would deliver [the child] to my home Sunday morning and I would take [the child] to his daycare on Monday morning);

   (b)from the conclusion of daycare on Tuesday afternoon to the commencement of daycare on Thursday morning (I would collect [the child] from his daycare on Tuesday afternoon and return [the child] to his daycare on Thursday morning); and

   (c)[Ms Beletti] would then deliver [the child] to my home at 9:30 am on Saturday morning (and the 14-day cycle repeats itself).

   43.Since 12 June 2016, as outlined above, I had spent significant and substantial time with [the child] including (since 8 October 2016) evening time on 6 nights in each 14 day period, (apart from an initial period of 6 weeks when I moved to my [D Street] home, when I returned [the child] to [Ms Beletti] on 3 out of the 6 Saturday nights to enable me to spend time “childproofing” my [D Street] home).

   44.After separating from [Ms Beletti], I relocated to my [D Street] home at [Suburb E], as it was literally several minutes walking distance from the former matrimonial home, and also several minutes walking distance from [the child’s] daycare centre.  I chose this location as it was conveniently located to allow for me to spend significant time with [the child] (including the 6 nights in each 14 days period/cycle), and also so as to cause the least disruption to the child’s daily routine or his schedule.”

3. The mother deposed that the child spent time with the father at the home of the paternal grandmother from midday on Saturday until noon on Sunday in each week for approximately two months following the separation.  The mother maintained that the parties then agreed that the child spend time with the father for two days and nights and for some hours on Saturday each week, with the maternal grandmother being present at his home.  The mother suggested that the father did not avail himself of all of this time on a regular basis.

4. The mother deposed that the parties attended Family Dispute Resolution in November 2016 and agreed that the child would spend three nights per week with the father.  She maintained that she agreed to this arrangement upon the understanding that the paternal grandmother would continue to be present in the father’s home on the nights when the child was in his care.  The father disputed that there was such an agreement.

5. On 29 April 2017 the mother unilaterally suspended the child’s time with the father.  She also moved with the child to the home of her parents and changed his daycare centre, without the consent of the father.

6. On Thursday, 20 April 2017 the father collected the child from daycare and the child remained with him until the following Saturday.  Daycare staff contacted the mother and she consented to the child leaving the premises with the father.

7. The mother made a number of complaints concerning the father’s alleged behaviour, being essentially as follows:

   1.        The father drinks alcohol to excess;

   2.        The father uses illicit drugs;

   3.The father criticises the mother in the presence of the child at changeovers;

   4.        The father drives on a suspended licence;

   5.The father told daycare staff to prevent the child from napping during the day to make it easier for him to sleep at night; and

   6.The father’s employer took disciplinary action against him, for reasons including excessive time off work.

8. The mother alleged that the father drank alcohol to excess throughout the parties’ relationship.  He contended that both parties “drank moderately and responsibly” but conceded that his consumption was excessive in 2009, after the sudden death of both of his grandparents.  The father denied that he uses illicit drugs.

9. The father annexed to this affidavit copies of chain of custody urine and blood tests which were carried out on 7 June 2017.  The results were negative for illegal drugs and did not show the presence of alcohol.  Hair follicle tests were carried out on the same day and returned negative results for illegal drugs.  Copies of the hair follicle testing certificates were also annexed to the father’s affidavit.

10. The father denied that he made derogatory comments to the mother at changeovers.  He maintained that he communicates with her only by text message or email.  There was no independent evidence of any inappropriate behaviour by the father at changeovers.

11. The father deposed that his licence was suspended for one day in March 2017, due to non-payment of the fine.  He claimed that the infringement notice was sent to the former matrimonial home and did not come to his attention.  He became aware of the outstanding fine when he attended an office of Service New South Wales to update his address.  He deposed that his licence was reinstated when he paid the fine immediately.

12. The father annexed to his affidavit a copy of a medical report dated 22 December 2015, which arose from a workplace assessment of his health.  This assessment was carried out, in part, to address the extent of the father’s sick leave.  The conclusion of the assessing doctor was that the father’s sick leave was “largely medically substantiated” and attributable to recurrent bronchitis, chronic smoking and hypertension.  This report offered no criticisms of the father in the context of his sick leave.

13. The father elected to offer no response to the mother’s allegation that he instructed daycare staff to prevent the child from napping during the day, so as to assist with his night-time sleep.  The father responded specifically to various paragraphs in the mother’s affidavit but was silent as to this allegation.

14. The mother alleged that the father has threatened to take the child to Europe since separation.  The father denied that he has made any such threats and deposed that he has no intention of removing the child from Australia.

15. The mother alleged further that the child is “tired and exhausted” and hungry when he returns from time with the father.  There was no independent evidence to corroborate these allegations.

16. The parties agreed that the child suffers from mild autism and that he is under the care of paediatrician Dr F.  The father deposed to his role in the diagnosis and treatment of the child’s condition.  Obviously he has been involved to a significant extent and is knowledgeable as to the effects to the child’s condition.

17. In October 2016 the father commenced a relationship with “Ms H” who is 33 years old.  She has a two year old son named J.  The father and his partner do not cohabit but they share activities, which include the child and J.

Consideration

1. Each of the parties has a close and strong relationship with the child.  In my view, nothing in the evidence suggested any need to protect the child from abuse, neglect or exposure to violence in the care of either parent.

2. The mother maintained that she agreed to the child spending extensive time with the father only because the paternal grandmother was to be present during overnight stays.  The paternal grandmother swore an affidavit, in which she denied that the mother ever asked her to supervise the child’s time with the father.  She deposed that she was present on numerous such occasions but for reasons of convenience.

3. The Consent Orders of 21 June 2017 made provision that the father submit for drug and alcohol testing and for an automatic suspension of the child’s time with him, in the event of a positive result.  The father gave a “without admissions” undertaking to refrain from consuming alcohol for 24 hours prior to the child’s time with him and during that period.  An Order was made which prevents either party from removing the child from the Commonwealth of Australia.  In my view, these Orders address most of the concerns raised by the mother.

4. The child is only four years old and his views would carry little or no weight in relation to parenting arrangements.  I am satisfied that he enjoys close and loving relationships with both of his parents, the maternal grandparents and the paternal grandmother.

5. Both parties have been closely involved with the diagnosis and treatment of the child’s autism and with his daycare arrangements.  As noted, the mother unilaterally changed the child’s residence and daycare centre in April 2017, actions which would have been detrimental to the co-parenting relationship.  To their credit, however, the parties have agreed to undertake family therapy.

6. Counsel for the father indicated that he will resume his contribution to payment of the childcare fees, as an Order was made for the child’s return to C Daycare Centre.  He stopped these payments when the mother unilaterally changed the child’s daycare arrangement.

7. Between August 2016 and January 2017 the child spent three nights per week in the care of the father.  From the beginning of February 2017 until 29 April 2017, the child continued to spend three days and nights per week in the care of the father, although in a different pattern.

8. Accordingly the child spent six nights per fortnight in the care of the father for approximately nine months between August 2016 and April 2017. I am inclined to the view that he became accustomed to this pattern, which was unilaterally terminated by the mother at the end of April 2017.

1. No difficulties arise in terms of practical difficulty and expense of the child spending time and communicating with each parent.  The homes of the parties are apart by approximately 20 minutes driving time.

2. In my view, no issues arise as to the capacity of either party to provide for the needs of the child.  It seems to me they are both devoted and involved parents.  I have no reservations as to the attitude to the child and responsibilities of parenthood demonstrated by either party.  The mother took unwarranted unilateral action in relation to the child’s time with the father and daycare centre arrangements. However, on the other hand, the parties were able to resolve significant issues on 21 June 2017.

3. On 21 June 2017 I made an interim Order that the parties have equal shared parental responsibility for the child.  Consequently I am required to consider whether it is in the child’s best interests, and reasonably practicable, that he spend equal, or substantial and significant, time with each parent.

4. The child is four years of age and he suffers from mild autism.  He has never spent equal time with each parent and the effect of an immediate introduction of a week-about regime cannot be predicted on the available evidence.  At this stage of the child’s life, I am not satisfied that an equal time week-about arrangement would be in his best interests.

5. As noted above, the child is likely to have become accustomed to spending six nights per fortnight with the father.  These arrangements subsisted for approximately nine months between August 2016 and April 2017.  In my view, it would be in the child’s best interests that these arrangements are reinstated forthwith.  Nothing in the evidence suggested that there are difficulties with reasonable practicability in such an arrangement.

6. I will make Orders to the effect that the child spend time with the father in the pattern which was in place immediately prior to the mother’s unilateral suspension in April 2017.  In my view, such Orders will result in the child’s spending substantial and significant time with each parent.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 29 June 2017.

Associate: 

Date:  29 June 2017