Cabbett and Cabbett
[2019] FCCA 3393
•29 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CABBETT & CABBETT | [2019] FCCA 3393 |
| Catchwords: FAMILY LAW – Parenting – where consent orders for child to spend alternate weekends with mother – application by the father to vary order alleging travel is time consuming and onerous as well as interfering with child’s sports activities – best interests of the child – benefit to child of having a meaningful relationship with both parents – Rice & Asplund – application dismissed – applicant to pay respondent’s costs. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: Rice and Asplund, In the Marriage of, Re (1978) 6 Fam LR 570 Wallace & Wallace [2019] FamCA 250 |
| Applicant: | MR CABBETT |
| Respondent: | MS CABBETT |
| File Number: | ADC 3359 of 2015 |
| Judgment of: | Judge Young |
| Hearing date: | 29 October 2019 |
| Date of Last Submission: | 29 October 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 29 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dickson |
| Solicitors for the Applicant: | Se Lawyers |
| Counsel for the Respondent: | Mr Roberts |
| Solicitors for the Respondent: | Lachlan Mcauliffe Barrister & Solicitor |
ORDERS
That the initiating application filed by the father on 21 November 2019 be dismissed.
That the father pay mother’s costs as taxed according to Schedule 1, Part 1 of the Federal Circuit Court Rules 2001.
IT IS NOTED that publication of this judgment under the pseudonym Cabbett & Cabbett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 3359 of 2015
| MR CABBETT |
Applicant
And
| MS CABBETT |
Respondent
REASONS FOR JUDGMENT
Ex-Tempore
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is a parenting application concerning X who is eight years and three months old. She lives with her father pursuant to consent orders that were made on 18 June 2016. Those consent orders provided, in summary, for the parents to have equal shared parental responsibility. They provided alternative scenarios depending on where the parents themselves lived. If the parents were to live in Adelaide then it was to be an equal shared care arrangement. Similarly, if the parents lived in Town A, which is where the parents had lived at the time of X’s birth and for a period of about two years afterwards, then there would also be an equal shared care arrangement and also at a place called Town B, which is close to Town A.
In the situation that has actually applied with the father living in Adelaide and the mother living in Town A, the child was to live with the father and spent alternate weekends from 7.30 Friday to 5 pm Sunday.
That has been the situation since January 2016. In other words, a period of almost four years or three years and about nine or 10 months. The parties appear to communicate poorly and there is evidence that they are inclined to be inflexible about the time spending arrangements. There is also evidence from the mother that on one occasion in December 2018 the father refused to provide X for her time with the mother under the 2016 orders because, according to an email attached to the mother’s affidavit, there was a sports championship game and the father advised the mother in an email dated 6 December 2018 that:
I will be keeping X with me this weekend. I’m happy to organise a make-up weekend at a later date and once you have provided me with your residential address.
I note that there is no order that the mother provide a residential address. The father does not address that particular allegation in his affidavit material so far as I’m aware. The nub of the dispute is this. The father alleges in his affidavit in support of his initiating application and other affidavits he has also filed that the alternate weekend arrangement, whereby the child travels to Town A, a journey which the parties say is somewhere between 2.5 and 3 hours, is time consuming and onerous. Particularly, it is implied, for the child, notwithstanding the fact that the parties have agreed to meet halfway between Town A and Adelaide in each case. There doesn’t appear to be any particular complaint about that arrangement.
The other issue raised by the father is that the child has a reasonable busy, some might think a very busy, sporting calendar of commitments. Those commitments are set out in the Family Report at paragraph 42 including summer and winter sports: sports on Monday and Wednesday, plus five or six competitions on weekends and a camp in June on the long weekend; sports, Monday after school and Saturday in the summer; sports, Thursday after school and Sunday mornings in the winter; sports, Thursday after school and Sunday in the morning; school sports, as opposed to sports, on Wednesday and Thursday after school; Sports on Saturday afternoon in the summer; and music lessons fortnightly at 11 am. There’s also mention of sports but that was apparently dropped because it couldn’t be fitted in. The child, according to the Family Report, is also keen to do other sporting activities.
The father told the family consultant he didn’t think that this was overloading the child. I do not think I am in a position to draw any conclusion of that. It is clear from the family report, I should say as well, that the father makes criticisms of the mother because the father says that the mother is substantially unavailable for the child in Town A because the mother spends a great deal of time going to sporting engagements herself. I didn’t pick up in reading material what sport it was but the mother is, it appears agreed, very involved in sporting activities and often X would accompany her to those sporting activities in Town A.
The mother also says that X plays sports, and another game in Town A but the arrangement is, according to the mother, that it is understood that X is only in Town A on alternate weekends. That has been accommodated by the sporting club as I understand it. The father’s principal complaint as I read the material is that X is, put in ordinary speech, “a sports mad kid,” and the alternate weekend arrangement interferes with that and X has expressed dissatisfaction about being required to travel to Town A on alternate weekends.
The family consultant, when he spoke to X, elicited some remarks from X that were somewhat supportive of that. X said that she often wanted to play sport, impliedly, rather than going to see her mother. The family consultant observed that the expression of the child’s wishes reflected or mirrored the father’s views. The family consultant implied with that observation that given the positions of the parties, given that the child seems to be aware to some degree of the conflict between the parents, that the child’s wishes should be treated with some caution. I agree and I do not propose to give significant weight to the child’s views in that regard.
The family consultant also observed that the child has a positive relationship with both parents. The family consultant really saw no distinction in the quality of the relationship between X and the father, and between X and her mother. The child was happy to see both of them, was obviously close to both of them and clearly loved both of them and felt secure. There is also some other evidence provided by the mother that X was seeking closeness to the mother in a physical way when she visited at various times, sleeping in the bed with her and so on.
The other factor is that the maternal grandparents live in Town A. So not only does the child’s mother live in Town A but the child’s grandparents. The evidence of the relationship between the child and the maternal grandparents was not particularly detailed and I was not able to form any view about whether the material indicated a particularly close relationship or not. Nevertheless, there is nothing to indicate that it was not an ordinary kind of relationship between an eight year old and the grandparents who live in the same town as her mother.
In my view, the evidence is that this child has a close relationship with her mother and it is necessary that the child spend substantial and significant time with her mother in order for the requirement in section 60CC(2)(a) to be satisfied. One of the two primary considerations in assessing the best interests of the child is the benefit to the child of having a meaningful relationship with both of the child’s parents. Fortunately in this case the consideration in section 60CC(2)(b) is not relevant, that is, the need to protect the child from harm.
I see no indication in the material, particularly the material filed by the father, about how he thinks his proposal would affect the relationship between the child and the mother. I should mention his proposal assumes that the mother continues to live in Town A and he continues to live in Adelaide and there is nothing to suggest that there will be any change in that. He suggests that during the school term the child spend one weekend a term with the mother in Town A and, of course, school holiday time. That would be a very significant truncation of the time the child spends with the mother and I am satisfied on the material before me that that is likely to have an effect on the possibility of the child, who is just 8, having a meaningful relationship with both of the child’s parents, particularly the mother.
As that is a primary consideration in the legislation, I consider that the other matters raised by the father are less significant. Of course, there are additional considerations in assessing the best interests of a child and those are the ones set out in subsection 60CC(3). I should refer to those, at least in a summary way, particularly the ones that I consider are important.
(a) I accept that the child has expressed views but for the reasons I have given I do not accord great weight to those views.
(b) The nature of the relationship with the child, with each of the child’s parents. I have made some remarks about that. It is clear that the child has a positive relationship with both parents, is close to both parents and the child, under the present arrangements, has a meaningful relationship with both parents.
(c) I am not satisfied this is particularly significant in this case or (c)(a).
(d) I have addressed that somewhat. I consider that if there was a change in the child’s circumstances along the lines proposed by the father then it would threaten the child’s relationship with the mother.
(e) The practical difficulty and expense of a child spending time with and communicating with a parent. I accept that there is some difficulty in the present arrangements. I accept that there is significant travel involved. I accept that from time to time the child will miss out on significant sporting events. However I note, as the family consultant noted, that both of these parties consented to orders in 2016 which has created the current situation. In my view, it is not the Court’s task to fine tune such things as which sporting event a child attends. These are matters which are centrally those relating to parental responsibility where parents have taken on by agreement the task of joint decision-making in relation to this child. It is clear they do not communicate all that well but, nevertheless, I do not consider that it is the Court’s role in the circumstances of this case to prioritise an eight year-old child’s sporting commitments over a relationship with her mother. I do not consider the other matters of particular significance in the circumstances of this case.
I was referred to the decision, generally, in Rice & Asplund (1978) 6 Fam LR 570. In particular, I was referred to a decision of Wallace & Wallace [2019] FamCA 250, a single-judge decision of Tree J, at paragraph 29. The parties agreed that his Honour’s summary of the principles in Rice & Asplund is accurate and useful. I have had regard to that paragraph and, in particular, the reference to the best interests of the child being the paramount but not the only consideration in applying the rule. Other considerations include public policy issues such as avoidance of unnecessary litigation in relation to children, the requirement for finality of litigation and so on.
I also note that his Honour’s summary recognises that parenting issues may be reopened in relation to narrow issues and Ms Dickson characterised this case as seeking to reopen in relation to narrow issues. I do not consider that it is a narrow issue. I consider that it is an extremely important issue that would be opened in a retrial, that is, whether or not a child’s sporting commitments should be privileged at the expense of the requirement in subsection 60CC(2)(a) that a child has a right to the benefit of a meaningful relationship with both parents.
In my view, the test in Rice & Asplund can be described in a succinct way as this: having a regard to the best interests of the child, is it on the cards that there would be a variation in orders? I think I have given my clear answer to that question.
This is a costs application following an unsuccessful application by the father to reopen proceedings. The father has been entirely unsuccessful and the mother seeks an order for costs according to the schedule in the Circuit Court Rules. I have not been provided with any schedule or table about how those costs might be calculated.
Under section 117 ordinarily each party bears their own costs. However, a Court may depart from that rule and in considering whether any costs order ought to be made the Court shall have regard to the matters in section 117(2A). As to the financial circumstances of each of the parties to the proceedings, I was told each of them are employed, though I am not told how much they earn. I was not told that either party is legally aided. As to the conduct of the parties, I have considered the father’s application to lack real merit and accordingly the application has been dismissed.
Part (d) is not relevant and (e) is relevant in that the father has been wholly unsuccessful and the mother successful. As to part (f), I have not been told about any offer in writing and (g), any other matters the Court considers relevant. I am not aware of any other relevant matter.
In my view, the application was speculative and without substantial merit. There will be a costs order.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Young
Date: 22 November 2019
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