Bird and Tindall

[2009] FamCA 1258

FAMILY COURT OF AUSTRALIA

BIRD & TINDALL [2009] FamCA 1258

FAMILY LAW – CHILDREN - With whom a child lives - Interim application for parenting orders in relation to a 20 month old child

Family Law Act 1975 (Cth)

APPLICANT: Mr Bird

RESPONDENT: Ms Tindall

FILE NUMBER: NCC 3245 of 2008

DATE DELIVERED: 7 December 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 7 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Mr Rugendyke, Slater & Gordon Lawyers

COUNSEL FOR THE RESPONDENT: Mr Weightman

SOLICITOR FOR THE RESPONDENT: Kekeff & Associates Solicitors

Orders

1. Consent Orders 1, 2 and 3 made on 11 February 2009 are discharged.

PENDING FURTHER ORDER

1. The child P (“the child”), born … March 2008, shall live with:

   2.1      The mother from:

   a.         Now until 9:30 am on Friday 11 December 2009;

   b.Wednesday 9:30 am until 9:30 am on the second Friday following, each alternate week, commencing Wednesday 16 December 2009.

   2.2The father, from 9:30 am on Friday until the following Wednesday at 9:30 am, each alternate week, commencing Friday 11 December 2009.

2. For the purposes of implementing Order 2, the mother shall cause the delivery, and the father shall cause the collection, of the child at the commencement of the time that the child is to live with the father at the KFC Restaurant, N, New South Wales, and the father shall cause the delivery, and the mother shall cause the collection, of the child at the conclusion of the time that the child lives with the father at the same place.

3. All other applications for interim orders set out within the father’s Amended Application filed on 7 December 2009 are dismissed.

4. All other applications for interim orders set out within the mother’s Amended Response filed on 30 October 2009 are dismissed.

5. Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that 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.

IT IS FURTHER ORDERED

1. The trial of this matter is listed to continue before Justice Austin at 10:00 am on Monday, 24 May 2010, for a period of three days.

2. The applicant father shall pay the trial fee, or alternatively successfully secure a waiver of such fee, no later than one month from the date of these orders.

3. The parties and the Independent Children’s Lawyer shall file and serve the affidavits upon which they rely by Friday, 5 February 2010.

4. Leave is granted to the applicant father to file and serve affidavits of:

   a.Himself; and

   b.The paternal grandmother;

5. Leave is granted to the respondent mother to file and serve affidavits of:

   a.Herself; and

   b.Mr T.

6. Except as already provided, the parties shall not file any further affidavits without the leave of the court.

7. The Family Consultant shall prepare a Family Report, pursuant to s62G of the Family Law Act 1975, and the parties are directed to attend upon the Family Consultant as and when required for the purposes of the preparation of that report.

8. The parties shall by Monday, 17 May 2010, file with the Associate of Justice Austin an Agreed List of Documents.

9. The parties shall by Monday, 17 May 2010, file with the Associate of Justice Austin, and serve upon one another, a Case Outline Document containing:

   a.Chronology;

   b.Summary of argument; and

   c.List of authorities

10. If any party should default in the compliance with these orders the other party may contact the Associate of Justice Austin, on notice to the other party, to seek that the matter be re-listed for consideration of further orders pursuant to Rule 11.02(2) of the Family Law Rules.

11. Liberty to restore the matter to the list on seven days notice.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 3245  of 2008

MR BIRD

Applicant

And

MS TINDALL

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. Before the Court for hearing today is an application for interim parenting orders concerning the child P (“the child”), born in March 2008.   The child is presently 20 months of age.

2. The father relies upon his Amended Application filed on 7 December 2009. 

3. The mother relies upon her Amended Response filed on 19 November 2009.

4. The parties have distilled the issues between them to the following:

   a)The time that the child will spend in each of their respective households.

   b)The venue of changeovers.

   c)The ability of the child to travel to New Zealand with the mother in the last week of March 2010 to attend a wedding.

5. In support of their respective proposals the father reads his affidavit sworn on 27 November 2009, but filed on 7 December 2009, and the mother reads her affidavit filed on 19 November 2009.

Interlocutory Application

1. There was a preliminary application by the father, necessitated by his failure to comply with procedural orders made on 16 October 2009.  Order 2 made on that date required the father to file his Amended Application by 23 October 2009, and Order 4 made on that date required him to file and serve his affidavit by 20 November 2009.  He failed to comply with both of these orders.

2. It is submitted by the learned solicitor appearing for the father that he did in fact serve upon the mother a minute of the orders he proposed, and that he did so on 23 October 2009. The significance of that date is that that is the date upon which he was obliged to file and serve his Amended Application.

3. I am also informed by the learned solicitor appearing on behalf of the father that he served upon the mother an unsealed copy of the father’s affidavit on 27 November 2009.  Given that he was obliged to file and serve his affidavit by 20 November 2009, the mother received the father’s affidavit material about seven days late, but still some ten days in advance of this hearing.

4. Learned counsel appearing for the mother fairly conceded in submissions that the mother would not suffer irremediable prejudice if the father was granted leave to file those documents in Court today and rely upon them for the purposes of contesting the interim proceedings.

5. In those circumstances, leave was granted to the father to file his Amended Application and his affidavit in Court today.

Background History

1. The relevant background history can be stated quite shortly.  The parties commenced their relationship in early 2007.  Their child was born in March 2008 and they finally separated in December 2008. Upon separation the mother departed the home that the parties had shared with the child. 

2. The father commenced the current proceedings by filing his Application on 22 December 2008.  He subsequently amended that Application on 6 January 2009.  The mother filed her Response on 9 January 2009, which she amended on 5 February 2009. 

3. Because each party was seeking interim orders, the proceedings were brought before the Court at an early time. On 11 February 2009, the proceedings came before Judicial Registrar Loughnan.  On that occasion, the parties settled their differences and the Court made interim parenting orders in accordance with the settlement achieved by the parties.

4. The gist of the orders made on that day required the child to live with the father each Tuesday between 8:00 am and 6:00 pm, from 8:00 am Wednesday until 8:00 am Thursday, and from 8:00 am Sunday until 8:00 am Monday.  Self-evidently, by application of that parenting regime, the child was to spend three days and two nights per week with the father, and four days and five nights per week with the mother.

5. The parties conferred with the Family Consultant, Mr C, at a Child Dispute Conference convened on 20 January 2009. 

6. The parties attended another Child Dispute Conference with the Family Consultant on 12 October 2009, as a consequence of which the Family Consultant prepared a Memorandum bearing that date. 

7. When the matter subsequently came before me for less adversarial trial, the Family Consultant’s Memorandum dated 12 October 2009 was admitted into evidence and marked Exhibit ICL1.

8. The comments of the Family Consultant in that document indicate that a judicial decision is required to finalise the proceedings.  The Family Consultant commented that the conflict between the parents appeared to have escalated and that the communication between the parties is extremely poor and not child focused.  The Family Consultant considered that the current interim parenting orders expose the child to ongoing conflict.

9. The matter came before me for less adversarial trial on 16 October 2009.  On that occasion short evidence was given by both parties and also the Family Consultant.  In summary, the Family Consultant was of the view that the interim parenting orders made consensually between the parties on 11 February 2009 did not serve the interests of the child.  Moreover, the Family Consultant expressed the view that those orders were positively detrimental to the child and required urgent revision.

10. Neither of the parties cavilled with that opinion expressed by the Family Consultant.  Indeed, both parties concurred with the suggestion that the Court move to reconsider the interim parenting orders at the earliest convenience.  Although both parties had quite disparate views as to what parenting orders were most appropriate for their daughter, they were both in agreement that the orders formerly made with their consent required amendment.

11. As a consequence of the short evidence taken from the Family Consultant and the views expressed by the parties, the matter was listed before the Court today for urgent interim hearing with a view to implementing more suitable parenting orders pending the final determination of the proceedings.

Summary of Parenting Law

1. Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” in s 64B.

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects in determining the nature of the parenting orders which ought properly be made.

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration. The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child.

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child. That parental responsibility pertains to the major long-term issues concerning the child.  However, the presumption either does not apply or may be rebutted in certain circumstances set out within ss 61DA(2), 61DA(3) and 61DA(4).

5. In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents.

6. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

Best Interests of the Child

1. Having acknowledged the structural format of the Act, I turn to consider those matters set out within s 60CC of the Act which are of relevance to the determination of these proceedings.

2. I observe at this point that there is considerable factual dispute in the historical versions of their relationship offered up by the parties in their respective affidavits.  For the sake of clarity, I note that in interim proceedings the Court is obliged to make orders premised on evidence which is either uncontested, or upon inferences that fairly arise from the available evidence.  Little or no weight is attributed to evidence which is the subject of controversy.

3. The evidence and the manner in which the parties have presented their cases to this point in time permit an inference to be fairly drawn that the child enjoys a meaningful relationship with both parents.  Neither has contended to the contrary.  In the circumstances, it is important that any orders made by the Court recognise the need to maintain and promote the meaningful relationship that the child enjoys with each parent.

4. The mother has made numerous, as yet untested, allegations of family violence against the father.  Those allegations are either expressly or implicitly denied for the most part.  Because neither party has been tested on their evidence, I am unable to draw any firm conclusions about the veracity of the allegations in that regard made by the mother.  I am unable to presently form any conclusion as to whether the child has in the past been adversely affected by exposure to abuse or family violence between the parties.

5. Neither party makes any material allegation against the other as to abuse of the child and I accordingly draw the conclusion at this point in the proceedings that neither party poses an unacceptable risk of abuse to the child such as to compromise the child’s physical or psychological welfare.

6. The evidence that has been so far adduced does not permit me to make findings in respect of each and every matter found within s 60CC of the Act. So far as additional considerations under s 60CC(3) are concerned, it is clear that the child would be deleteriously affected by any lengthy separation from either of her parents.

7. For the last 10 months the child has been having frequent but short stays with both parents.  It is the frequency of that chaotic arrangement that has now brought the matter back before the Court for reconsideration. Even though both parties petition the Court for a revised parenting regime for the child, it is clear that the revised orders will still need to ensure frequent time for the child with each parent. 

8. There will be no practical difficulty or expense in implementing such a revised arrangement because the parties live in reasonably close proximity on the north coast of New South Wales.  Although they live in different townships, the uncontested evidence is that the households of the parties are approximately 10 minutes driving time apart.

9. It is clearly not in the best interests of the child to have the disjointed parenting regime that has controlled the familial circumstances for the last 10 months.  The child requires more stability to foster her emotional security.  That is a clear message drawn from the evidence of the Family Consultant.

Conclusion

1. Both parties have asked the Court to make interim orders allocating parenting responsibility in one form or another. I decline to do so. Presently, the Court is making interim orders and pursuant to s 61DA(3) of the Act I do not consider that it would be appropriate in the circumstances for the presumption of equal shared parental responsibility to apply.

2. I come to that conclusion principally for two reasons.  Firstly, the mother makes strident allegations of family violence against the father which are contentious. Interim proceedings are not the forum to adjudicate that controversy.  Secondly, the matter is likely to be set down for final hearing within coming months and it is wholly unnecessary in those circumstances to enter upon a protracted debate about the allocation of parental responsibility with final hearing in such proximity.

3. By not allocating equal shared parental responsibility presumptively, that does not mean that the parties do not have parental responsibility for the child.  They retain parental responsibility individually by reason of law – they are simply not allocated equal shared parental responsibility.

4. Given the Court’s disinclination to allocate equal shared parental responsibility, there is no obligation upon the Court, pursuant to s 65DAA of the Act, to consider a regime of equal time in each household for the child. I am not satisfied that an equal time arrangement is conducive to the emotional development of a child only 20 months of age. In my view, the parenting regime for a child of that age must strike a balance between regular time with each parent on the one hand and decreasing the number of changeovers on the other. As I have already mentioned, it is important for the life of the child to be made less frenetic than is currently the case under existing orders.

5. I intend to make interim parenting orders that will provide for the child to live with the parties at times divided across a fortnightly cycle, and to ensure that the changeovers are effected at the same venue without exception.

6. In respect of the residual issue about the child’s ability to travel to New Zealand with the mother in several months time, the mother’s counsel fairly conceded that there was no evidence that the child would either be benefited by being able to take part in such travel or that the child would be disadvantaged by being precluded from such travel.

7. In the course of these proceedings the mother has apparently floated ideas about her relocation with the child.  I am not satisfied on the state of the evidence as it currently stands that the mother has an intention to relocate with the child away from the north coast of New South Wales, but the prospect of her travelling to New Zealand and changing her mind is something that ought be avoided.

8. When the parties were last before the Court seeking interim orders on 11 February 2009 they reached agreement on Order 4, the effect of which was to restrain each of them from applying for any passport for the child and from removing or attempting to remove the child from Australia without the written consent of the other party or the leave of the Court.  That was the parties’ agreement in February.  There is insufficient evidence presently before the Court to persuade the Court that a quite different order is required now, particularly when the matter is likely to be finally concluded within the next six months.

9. For those reasons I make the following orders.

I certify that the preceding forty five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin

Associate: 

Date:  7 December 2009