Cardaklija & Cardaklija - [2007] FMCAfam 16

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CARPENTER & CARPENTER

[2007] FMCAfam 16

FAMILY LAW – Interim parenting orders – overnight time for 15 month old child – substantial and significant time-meaningful involvement and meaningful relationship.

Family Law Act 1975, ss.60CC, 61DA, 61DB, 65DAA

Cowling v Cowling (1998) FLC 92-801
Goode v Goode [2006] FamCA1346

Applicant:

MS CARPENTER

Respondent:

MR CARPENTER

File Number:

SYM5952 of 2006

Judgment of:

Altobelli FM

Hearing date:

13 December 2006

Delivered at:

Sydney

Delivered on:

18 January 2007

REPRESENTATION

Counsel for the Applicant:

Mr Johnston

Solicitors for the Applicant:

Johnston Vaughan Solicitors

Solicitor Advocate for the Respondent:

Mr Brown

Solicitors for the Respondent:

Browns the Family Lawyers

ORDERS

The respondent father will spend time with the child M born in September 2005 as follow:
1.1Between the date of these orders and 8 March 2007:
a.From 9am to 6pm each Tuesday, Thursday and Saturday; and
b.At other or alternate times as agreed between the parties.
1.2From 9 March 2007 to 30 May 2007:
a.From 9am to 6pm each Tuesday and Saturday; and
b.From 6.30pm each Thursday to 12 noon on Friday; and
c.At such other or alternate times as agreed between the parties.
1.3From 1 June 2007 until the making of further orders:
a.From 6.30 pm each Monday to 6pm Tuesday; and
b.From 6.30pm each Thursday to 6pm each Friday; and
c.From 9.00 am to 6.30 pm each Sunday.
The child live with the mother at all other times.
The father shall collect M from the mother’s residence at the commencement of spending time with M, and then to return M to the mother’s residence at the conclusion of the said time.
The matter be adjourned to 5 July 2007 at 10am for a two day final hearing.
Each party file and serve all affidavits on which they intend to rely at hearing by no later than 4.00pm on 21 June 2007. No further affidavits to be filed after that date without leave of this Court.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of this Court on a date and at times to be advised for the purposes of the preparation of a Family Report addressing the issues identified in section 60CC of the Act.
The parties send copies of all their court documents to the family report writer within 3 days of being requested to do so by the family report writer.
I DIRECT the legal representatives for both parties or the parties themselves to confirm with the report writer no later than ten (10) days prior to the scheduled interviews that the interviews will proceed on the dates allocated.
The Applicant pay the hearing fee or obtain a waiver of that fee at least 14 days prior to the hearing date.
No later than two working days prior to hearing each party forward to my Associate a document setting out:
a.The affidavits on which the party will rely at hearing;
b.The orders sought at hearing.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYM5952 of 2006

MS CARPENTER

Applicant

And

MR CARPENTER

Respondent

REASONS FOR JUDGMENT

Background and orders sought

This is an application for interim parenting orders filed on behalf of the applicant mother in relation to the one child of the marriage M born in September 2005 who is currently 15 months old. The mother’s application is supported by her affidavit filed on

11 December, and an affidavit of her mother, BB also filed on that date.
The respondent, who is the father of M, sought interim orders in the following terms:
1.That the father shall spend time with the child M born in September 2005 as follows:
1.1    From this date until 7 January 2007 from 9 am – 6.30 pm each Tuesday, Thursday and Sunday.
1.2    Thereafter until 8 March 2007.
(a)From 6:30 pm Monday to 2:30 pm Tuesday in each week.
(b)From 9:00 am to 6:30 pm each Thursday and Saturday.
1.3    Thereafter:
(a)From 6.30 pm Monday to 2.30 pm Tuesday in each week.
(b)From 6.30 pm Wednesday to 2.30 pm Thursday in each week.
(c) From 9 am to 6:30pm each Sunday.
2.That the husband shall collect M from the home of the wife at the commencement of each period that he spends time with M pursuant to these orders and the wife shall collect M from the home of the husband at the conclusion of each of these periods.
On 6 September 2006 Federal Magistrate Sexton made orders that pending further order the child M spend time with her father as follows:
1.The child M born in September 2005 spend time with the husband as follows:
(a)For the period 6 September 2006 to 14 October 2006, from 10.00 am until 2.00 pm each Sunday, Tuesday and Thursday.
(b)For the period 14 October 2006 to 24 November 2006, from 10.00 am until 4.30 pm each Sunday, Tuesday and Thursday.
(c)At other or alternate times as agreed between the parties.
2.The child to spend time with the wife at all other times.
3.The husband to deliver and collect the child from the wife’s home for the purposes of the child spending time with him

Concerns raised and evidence

The mother’s case is that the current arrangement whereby M spends time with her father three days a week is simply not working out. Mr Johnston, who appeared on behalf of the mother, submitted that there were problems which, in general terms, could be categorised as problems with the relationship between the mother and the father, and in terms of the relationship between the father and the child. For example, the mother’s affidavit filed 11 December refers to the father being consistently late for almost every visit with M, both in terms of collecting her, and then returning her. She gives evidence that M is very unsettled at the conclusion of the time she spends with her father, particularly in terms of sleeping routine, being tired etc. The mother also expresses concern about communication problems with the father, particularly arising out of the time spent by the father with M on Sunday 3 December 2006 when the mother noted scratch marks on M’s back. It is interesting that the mother’s concern about the scratches on M’s back are not put as concerns about her safety or welfare, but merely as an example of the difficulty in communication that the mother and father have. Indeed, there is no suggestion at all that the mother did not accept the father’s explanation that M had not only scratched herself, but scratched the father as well. So far as I am concerned there are no issues of concern arising out of this incident.
The mother is clearly concerned about M, who is only 15 months old, proceeding to unsupervised overnight time with her father. She emphasised in her evidence the lack of experience that the father has had in caring for the child. Her evidence is, for example, during the period of their cohabitation, that he did not wake up to M in the night if she was crying, he never prepared food for the child or assisted or independently bathed or dressed M.
There also appears to be a strained relationship between the father and the maternal grandmother and grandfather.
In the affidavit of BB, the maternal grandmother, there is reference to an incident that allegedly occurred on Tuesday 21 November 2006 at 4.40 pm when the father returned M from spending time with her and allegedly threw M to the grandmother, who caught her. This was, allegedly, repeated on 8 October 2006. However, on this occasion the grandmother was not able to make a clean catch so that M hit her head on the entry door on her right side.
Again, the context of these expressions of concern arising from these incidents do not seem to be put in the context of serious concerns about M’s safety whilst in the care of the father, but rather a poor reflection on his parenting skills. It may, of course, also reflect the tense relationship that exists between the father and the maternal grandmother.
Mr Johnston submitted on behalf of the wife that there should be no overnight contact in the next six months. Indeed, his submission is that the presumption of equal shared parental responsibility has been rebutted because I would have concerns in relation to protecting the child from harm. His submission is that M needs to frequently spend time with her father, but for less time than the 10 am – 4.30 pm that currently applies.
Mr Brown appeared on behalf of the father and his evidence is contained in his affidavit that was filed on 13 December 2006. His evidence is that he was involved in the care of M though, even on his case, the father’s involvement was not nearly as substantial as that of the mother. He asserts, however, that he did assist in bottle feeding, changing nappies, bathing M, putting her to bed on occasions and supervising her when the mother was out.
The father’s evidence is that during the first three or four occasions when he spent time with M she was “a little quiet and reserved, and perhaps a little nervous about being in an unfamiliar environment”. His evidence is, however, that even that passed after a few hours and since then, i.e. after the first three or four visits, he has not observed any such quietness or nervousness. His evidence is that he can and does attend to all of M’s physical needs during the time that he spends with her. He has commenced the Unifam Parenting after Separation course and is due to complete his sixth session the week after this hearing. The evidence that he gives in his affidavit about his current physical environment and arrangements raises no concern whatsoever about his ability to provide a safe environment for M, and adequately care for her.
From his evidence about his relationship with the maternal grandmother it can safely be inferred that the relationship is tense. He strenuously denies throwing M at the grandmother, but acknowledges that M hit her head softly on the front door when the maternal grandmother turned away to carry M inside. His explanation for the scratches on M’s back is, in effect, that her fingernails needed to be cut.
Mr Brown’s submissions on behalf of the father is that the mother’s specific criticisms of the father particularly in terms of his parenting skills lack any foundation. Indeed, Mr Brown’s submission is that the father has had experience in parenting M and certainly does have the skills that would be required in continuing to care for M, including on an overnight basis, pending further order of the court. Indeed, Mr Brown’s submission is that the only way in which M could have a meaningful relationship with her father is if this includes overnight time.
Mr Brown submits that the presumption of equal shared parental responsibility applies and that whilst it would not be in M’s best interest for me to consider equal time, I should certainly consider substantial and significant time, or a variation of it that reflects M’s young age.

The applicable law

I note that neither party submitted that the Full Court’s decision in Cowling v Cowling (1998) FLC 92-801 specifically applied to this case. The submissions of both Mr Brown and Mr Johnston focused on the provisions of the new Part VII of the Family Law Act 1975 which came into effect on 1 July 2006.
Since then, the Full Court of the Family Court has handled down its decision in Goode v Goode [2006] FamCA1346. Paragraph 82 of that judgment includes a very helpful guideline for how proceedings such as these should be conducted. Suffice to say that, for present purposes, the Full Court’s decision means that Cowling[1] is of less relevance than it once was, particularly to the effect that it emphasised the child’s well-settled circumstances. The relevant passage in Goode[2] in this respect, is paragraph 72.
In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
[1] Cowling v Cowling (1998) FLC 92-801
[2] Goode v Goode [2006] FamCA1346
Of course, a child’s stability and settled living arrangements are still a relevant factor, though not necessarily as decisive as it once was. At paragraph 73, the Full Court states in this regard:
That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).[3]
[3] Goode v Goode [2006] FamCA1346 at 73.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s 61DA. That presumption applies even in interim orders “unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied” (s.61DA(3)). Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, 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 for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
As will be seen below, there are certain clear statutory implications if the statutory presumption applies. If the presumption applies, then I am obliged by s.65DAA to consider whether the child should spend equal time with each of the parents or substantial and significant time with each of the parents. If the presumption is not appropriate, however, then the discretion granted to the court under Part VII is less fettered than it might otherwise be if the presumption applies.
The Full Court in Goode[4] at paragraph 78 has provided some guidance as to when s.61DA(3) should be properly invoked:
The combination of the Revised Explanatory Memorandum and the comments of the House of Representatives Standing Committee on Legal and Constitutional Affairs suggests that s 61DA(3) provides a discretion not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult. In this case for example, we respectfully agree with his Honour’s decision that this consideration meant it was inappropriate to apply the presumption.
[4] Goode v Goode [2006] FamCA1346
Clearly the discretion not to invoke the statutory presumption of equal shared parental responsibility is a “discretion not to be exercised in a broad exclusionary manner”. In particular, limited evidence may make the application of the presumption, or its rebuttal, difficult.
Thus, it might not be appropriate to apply the presumption because of the very nature of the proceedings, being interim proceedings with limited evidence available, and with no opportunity for that evidence to be tested. I do not think that the Full Court in Goode[5] was meaning to be exhaustive about the circumstances where the s.61DA(3) discretion should or should not be exercised. Thus, it might be inappropriate because of the very facts of the case including, for example, the age of the child, the geographical location of the mother and the father, the capacity of each parent for parenting etc.
[5] Goode v Goode [2006] FamCA1346
On the facts of this case I see nothing which would make it inappropriate for the presumption to apply. Moreover, there is nothing to indicate that the presumption has been rebutted. There is no evidence pointing towards the applicability of s.61DA(2) or (4). The submission for the respondent mother was that the presumption was rebutted, but I find there is no basis for that on the facts of this case. Accordingly, the presumption of equal shared parental responsibility governs the making of parenting orders in this matter, even though it is an interim application only. I note the terms of s.61DB which says, in effect, that in making the final parenting order in relation to this child, the allocation of parental responsibility that I make on an interim basis must be disregarded.
It follows that, in accordance with s.65DAA, I must consider whether the child should spend equal time or substantial and significant time, with each parent. Section 65DAA in turn requires me to consider whether equal time, or substantial and significant time, would be in the best interests of the child, and would be reasonably practicable.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.

The child’s age – 15 months old – and overnights

In reality, the most significant factor in this case is M’s age – she is only 15 months old. The mother does not dispute that M should spend time with her father, despite the concerns she has about M as expressed in her affidavit. She believes that M is seeing her father too frequently and for too long. I sense, however, that her biggest concern, if one had to prioritise concerns, is in relation to overnight time with M’s father. The father’s position is that overnight time should not commence until after 7 January 2007 when there will be one overnight visit each week on Monday nights. The father proposes that after 8 March 2007 M spends time with him overnight on Monday and Wednesday nights.
This means that s.65DAA requires me to consider the child spending equal time or substantial and significant time with each parent. Mr Brown conceded, quite correctly I believe, that equal time was not appropriate, particularly having regard to M’s age. However, he submits that s.65DAA(2) does apply, and I need to consider M spending substantial and significant time with each parent.
The definition of substantial and significant time is found in s.65DAA(3) which provides:
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

I observe that what substantial and significant time actually means for a particular child depends upon the individual circumstances of the child. Section 65DAA(3) has both quantitative and qualitative components to it. For example, it states when the child is to spend time with a parent (i.e. on weekends, not on weekends). It is more qualitative in nature in that it refers to the child’s daily routine etc and therefore what sorts of activities the child can share with the parents. What substantial and significant time means for 15 month old M is potentially very different as to what substantial and significant time means for a child who is older. Indeed, what substantial and significant time for M means when she is 15 months old, will probably be different to what it means for M when she is 6 years old.
Whilst s.65DAA(3) does not refer to overnights in the specific, quantitative sense, I find that it does include overnights in the qualitative sense because going to bed and waking up are part of the child’s daily routine and are events of particular significance to the child.
Indeed, overnights, is the real issue in this case. If, as I believe, substantial and significant time necessarily includes overnights in the context of this child, M, and because s.65DAA requires me to consider substantial and significant time, I need to consider whether overnight is in M’s best interest, and is reasonably practicable.
The latter consideration i.e. reasonable practicability is defined in s.65DAA(5) and despite the concerns that have been raised about poor communication and poor relationship I find nothing on the evidence that would deter me from finding that overnight time with the father was reasonably practicable, provided it is in M’s best interests.
How I determine M’s best interest for the purposes of s.65DAA(2) requires me to consider s.60CC with its primary and additional consideration.
Section 60CC(2) sets out the primary considerations. Paragraph (a) refers to the benefit to the child of having a meaningful relationship with both of the child’s parents and paragraph (b) refers to protecting the child from physical or psychological harm. There is nothing in the evidence presented that raises any issues in paragraph (b). As for paragraph (a) Mr Brown’s submission was, in effect, that in order for M to have a meaningful relationship with her father she needs to spend not just frequent time, but overnight time as well.
What does meaningful relationship mean in the present context? Could M have a meaningful relationship with her father even if she does not spend overnight time with him? The concept of meaningful relationship is, in some respects, not unlike the concept of substantial and significant time in that it all depends on the context i.e. the individual circumstances of the child. It maybe quite possible, for example, for a child to have the meaningful relationship with a parent and not have overnights. Indeed, it is possible that a child could have a meaningful relationship with a parent and not even have physical contact with that parent. It all depends on the individual circumstances of the case.
Is it essential to M having a meaningful relationship with her father, that she spends overnight time with him? There is a considerable body of research that deals with overnight time[6].
1.[6] See, for example, the various articles that are discussed and summarised in Altobelli, T, “Rethinking contact arrangements involving young children” (2005) 19 Australian Journal of Family Law 29.
2.
I find that there are no concerns about the nature of the relationship that M has with each of her mother and father, for the purposes of paragraph (b) of s.60CC(3). Likewise I have no concerns about paragraph (c). Even thought M’s mother and father have differences of opinion as to how much time M should spend with her father I am satisfied that they are each willing to facilitate the ongoing close and continuing relationship between M and the other parent. This is very much to the credit of each of the parents.
I do not think that paragraph (d) of s.60CC(3) has much impact on the facts of this case. Even if overnight time is ordered the changes in the child’s circumstances are not such as to warrant any concern. I have no doubt that the mother has concerns about the father’s ability to provide for the needs of the child for the purposes of paragraph (f), but I am satisfied that he does have this capacity. Indeed, as Mr Brown submitted on his behalf, he not only has the relevant parenting skills, but he has had the actual experience of parenting M. I find there are no issues under paragraph (g) relating to the maturity, sex, lifestyle and background of the children’s parents. Under paragraph (i) if there are concerns about the responsibilities of parenthood, these arise because of the post-separation conflict that exists between the parties and the tensions that exist between the wider family. Experience indicates, however, that as time passes this conflict will subside and I am satisfied that both the mother and the father do have the capacity to manage the conflict and minimise M’s exposure to the same.
Section 60CC(4) requires me to take into account further matters, but there is no evidence that it gives cause for concern under this subsection.
Having considered both the primary considerations and the additional considerations I see no reason not to implement overnight contact, gradually, and having regard to the research. Accordingly, I propose to introduce overnight time gradually. I make orders as set out in these Reasons.

I certify that the forty (40) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Associate: Lisa Molloy

Date: 18 January 2007