CARTWRIGHT & ARGERICH
[2016] FamCA 127
•3 March 2016
FAMILY COURT OF AUSTRALIA
| CARTWRIGHT & ARGERICH | [2016] FamCA 127 |
| FAMILY LAW – CHILDREN – With whom the child spends time – Parental responsibility – Best interests of the child – Where the father ceased spending time with the child – Significant distance between the parties – Gradual increase in time with the father – Significant conflict between the parties – Ongoing issues of the child’s health – FAMILY LAW – Allocation of parental responsibility to both parents as to medical issues and health with other aspects of parental responsibility vesting in the mother. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA |
| Mazorski & Albright [2007] FamCA 520 |
| APPLICANT: | Ms Cartwright |
| RESPONDENT: | Mr Argerich |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Penrith |
| FILE NUMBER: | PAC | 1501 | of | 2014 |
| DATE DELIVERED: | 3 March 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 12 February 2016 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Rafton Family Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Penrith |
Orders
That the father and mother have equal shared parental responsibility as to issues relating to the health of the child B born on … 2009.
That the mother and father keep each other informed in a timely manner of any medical or other health related appointments made for the child when the child is in their respective care such that the notification will facilitate the attendance of the other parent at such appointment or interview in the event that the other parent elects to attend.
That the order for equal shared parental responsibility as to the child’s health issues made above is sufficient authority for each parent to seek such information as they may reasonably request from any medical practitioner or allied health practitioner that attends upon the child provided always that the cost of providing such information shall be at the cost of the requesting parent.
That the mother otherwise have long term parental responsibility for the child including but not limited to the child’s education, the child’s religious and cultural upbringing, the child’s name and changes to the child’s living circumstances.
That the father by reason of this order shall be authorised to request and obtain from the child’s school such information as he may reasonably request relating to the child’s school reports, school newsletters, engagement with any school counsellors or the like provided always that the provision of such information shall be at the father’s expense and noting that the father is at liberty to attend at the child’s school for purposes relating to the child’s education and activities at the school where the attendance of either or both parents is to be reasonably expected.
That the child live with the mother.
That the child spend time with the father as agreed between the mother and father in writing with such writing to include SMS or email communication and in default of agreement as follows:
(a) Until the commencement of Term 2, 2016 each alternate Saturday commencing on the first Saturday after the date of these orders from 9:00am to 5:00pm;
(b) From the commencement of Term 2, 2016 each alternate weekend from 9:00am Saturday to 5:00pm Sunday until the end of term;
(c) During the school holidays at the conclusion of Term 2, 2016 for a period of three consecutive nights commencing at 9:00am on the first Saturday of the school holiday period and concluding at 5:00pm on the next Tuesday;
(d) From the commencement of Term 3, 2016 and in each school term thereafter each alternate weekend from 6:00pm Friday to 5:00pm Sunday commencing on the first weekend after the resumption of school term;
(e) During the school holidays at the conclusion of Term 3, 2016 for a period of five consecutive nights commencing at 9:00am on the first Saturday of the school holiday period and concluding at 5:00pm on the next Thursday;
(f) During the Christmas school holidays 2016/2017 for two non-consecutive periods of six nights as agreed between the mother and father and in default of agreement the first period to commence at 9:00am on the first Monday in January and conclude at 5:00pm the next Sunday and the second period to commence at 9:00am on the third Monday in January and conclude at 5:00pm the next Sunday;
(g) From the commencement of school in 2017 and during the school holiday periods at the conclusions of the first, second and third for a period of seven nights as agreed between the mother and father and in default of agreement for a period of seven nights commencing at 9:00am on the first Saturday of the school holiday period and concluding at 5:00pm on the next Saturday;
(h) During the Christmas school holidays 2017/2018 and thereafter for two non-consecutive periods of seven nights as agreed between the mother and father and in default of agreement the first period to commence at 9:00am on the first Monday in January and conclude at 5:00pm the next Monday and the second period to commence at 9:00am on the third Monday in January and conclude at 5:00pm the next Monday;
(i) On the Father’s Day weekend from 5:00pm Saturday to 5:00pm Sunday provided always that the child’s time with the father shall be suspended on the Mother’s Day weekend from 5:00pm Saturday;
(j) From 12 noon Christmas Eve to 12 noon Christmas Day in each even numbered year and from 12 noon Christmas Day to 5:00pm Boxing Day in each odd numbered year.
That for the purposes of the child’s time with the father he shall confirm with the mother not less than 48 hours before such time is to commence that he will be spending time with the child with such confirmation to be given to the mother in writing such writing may include SMS or email communication and for the purpose of this order both the mother and father shall keep the other informed at all times of their respective email and mobile phone numbers and advise of any change thereto within 24 hours of any such change.
That the mother and father shall keep the other informed at all times of their respective residential addresses and if applicable landline telephone numbers and advise the other of any change thereto within 24 hours of any such change.
That both the mother and father shall be at liberty to attend on significant occasions relating to the welfare of the child including occasions relating to the child’s schooling, education, extra-curricular activities, religious education and other significant welfare occasions where the attendance of either or both parents is to be reasonably expected.
That the orders made above as to the child’s time with the father during school holidays are subject to the father being reasonably available as primary carer for the child during such holiday periods provided always that he is at liberty to make arrangements for the child to spend appropriate time with the extended paternal family during such periods.
That for the purposes of changeovers between the mother and father such changeovers shall take place at the McDonald’s Family Restaurant C Town or as otherwise agreed between the mother and father in writing with such writing to include SMS or email communication.
That the mother and father shall use their best endeavours henceforth to communicate with each other respectfully and such communication shall be in urgent circumstances by telephone and otherwise be implemented by SMS or email communication.
That the mother and father shall refrain from making critical or derogatory remarks in relation to the other in the presence or hearing of the child and they each shall do all things necessary and use their best endeavours to ensure that no third party makes critical or derogatory remarks about the other in the presence or hearing of the child.
That the mother and father shall do all things necessary to follow all recommendations as to medical treatment and the administration of prescribed medications for the child is prescribed by medical professionals.
That the appointment of the Independent Children’s Lawyer be discharged.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cartwright & Argerich has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 1501 of 2014
| Ms Cartwright |
Applicant
And
| Mr Argerich |
Respondent
REASONS FOR JUDGMENT
These proceedings concern the child B who was born in 2009. The father for reasons unknown has disengaged from the proceedings.
The mother and father commenced their de facto cohabitation in about June 2009 and separated in February 2010. The child is the only child of their relationship.
The applicant mother commenced proceedings in the Federal Circuit Court of Australia in April 2014. At that time she relevantly sought parenting orders in relation to the child that provided for the mother to have sole parental responsibility for the child, for the child to live with the mother and with the child to spend time with the father on alternate weekends from after school Friday to before school Monday during school term and one week in each of the school holidays and provision for the child to spend time with the father on Father’s Day and during the Christmas festive period.
The father in his response filed in May 2014 sought orders that provided for the father and mother to have equal shared parental responsibility, that the child live with the mother and that the child spend time with him substantially as sought by the mother except that he sought one half of the longer Christmas school holiday periods.
On 19 May 2014 interim orders were made by consent that provided in summary as follows:
a)That the mother and father have equal shared parental responsibility for the child;
b)That the child live with the mother;
c)That the child spend time with the father each alternate weekend from 6:30pm Friday to 6:30pm Sunday with changeovers at the commencement of such time to be at D Town Police Station and at the conclusion of such time at E Town Police Station.
On 16 September 2014 an Independent Children’s Lawyer (“ICL”) was appointed to represent the child who at that time was nearly five years of age. On 11 November 2014 the parties were seen by a family consultant for the purposes of the preparation of a Child Dispute Conference Memorandum. That memorandum comprises Exhibit A in these proceedings.
Subsequently on 11 November 2014 an order was made for the preparation of a Family Report to facilitate the matter proceeding if necessary to hearing.
Somewhat inexplicably on 20 April 2015 the proceedings were transferred to this court. The proceedings were listed before a Registrar on 9 June 2015 so as to clarify the position in relation to the outstanding Family Report. All parties that day appeared before the Registrar.
Procedural Fairness
Proceedings were listed for a judicial case management hearing on 5 August 2015 and on that day all parties appeared. The parties were ordered to attend the Court Ordered Mediation Program with the ICL having leave to release the Child Dispute Conference Memorandum to the mediator. A further order was made for the preparation of a Family Report in the event that the mediation was unsuccessful. Proceedings were adjourned for further judicial case management to 20 October 2015.
On 5 August 2015 it was noted that the outstanding significant issues between the parties were:
a)The allocation of parental responsibility; and
b)The child’s time with the father over and above the time provided for in existing orders made on 19 May 2014.
On 6 October 2015 the father filed a Notice of Discontinuance of his Response to the mother’s application.
On 20 October 2015 there was no appearance by or on behalf of the father and orders were made that relevantly provided:
a)For the mother’s application to proceed to undefended hearing on 30 November 2015;
b)For the mother to file and serve one consolidated affidavit of evidence in chief;
c)That the solicitor for the mother forward a sealed copy of orders by ordinary prepaid post to the father by 30 October 2015 and that the solicitor for the mother forward to the father a copy of any further affidavits to be relied upon by the mother or any amended application by no later than 25 November 2015;
d)That service on the father be effected by ordinary prepaid post addressed to the father at F Street, G Town, NSW …; and
e)That the order for the preparation of the Family Report made on 15 August 2015 be discharged.
On 30 November 2015 the matter was again before the Court. It became apparent that the father, notwithstanding that he had discontinued his part in the proceedings, had sought to file an affidavit in the proceedings. To facilitate the father being afforded the opportunity to properly engage in the proceedings orders were made that provided:
a)That the proceedings to be adjourned for undefended hearing to 12 February 2016;
b)That the father file and serve a Response to the mother’s Initiating Application by no later than 29 January 2016 and file and serve any affidavit in support of orders sought by him by no later than 29 January 2016;
c)That in default of the father complying strictly with the previous order the mother’s application for parenting orders will proceed to undefended hearing on the adjourned date;
d)That the mother file and serve any amended application setting out with particularity the orders sought by her as to parenting on an undefended basis by no later than 11 December 2015;
e)That service of documents be effected on the father by forwarding same by ordinary prepaid post to the father at F Street, G Town, NSW … and also by email to the father at a nominated email address together with a letter from the mother’s solicitor informing the father of the orders made on that day, enclosing a sealed copy of the orders made today and informing the father that in the event he fails to comply with orders made today the mother’s application will proceed to an undefended final hearing on the adjourned date.
On 10 December 2015 the mother filed an Amended Initiating Application seeking final parenting orders in summary as follows:
a)That the mother have sole parental responsibility for the child;
b)That the child live with the mother;
c)That the child spend time with the father as agreed between the mother and father in writing and with 14 days’ notice and failing agreement as follows:
i)For a period of two months each alternate weekend on Saturday for a period of three hours;
ii)Thereafter for a period of two months each alternate weekend on Saturday for a period of five hours;
iii)Thereafter for a period of two months each alternate weekend between 3:00pm Saturday and 3:00pm Sunday thereafter each alternate weekend from 6:00pm Friday to 5:00pm Sunday;
iv)At such other times as may be agreed between the mother and father;
v)That the father’s time with the child be subject to the child’s wishes;
d)That the father’s time be suspended on the mother’s birthday on…, the child’s birthday on…, the child’s half-brothers’ birthdays on … and …, Mother’s Day and Christmas Day;
e)That the child’s time for the first four months with the father be facilitated by the mother dropping the child to the home of the paternal grandparents at H Street, I Town New South Wales … and the mother collect the child from those premises at the conclusion of the child’s time with the father;
f)That the child’s time with the father after the first four months be facilitated by changeovers at the McDonald’s Family Restaurant at C Town;
g)That the father notify the mother not less than 48 hours before he is to spend time with the child in the event that he does not propose to do so,
h)That communication between the mother and father be by telephone in urgent circumstances, email in relation to day to day matters including arrangements for the child’s time with the father and by communication book to remain with the child;
i)That there be a mutual non-denigration order; and
j)That both the mother and father do all things necessary to follow recommendations and administer all prescribed medication for the child where that medication is prescribed by a medical professional.
Subsequently the father was able to file on 19 January 2016 two affidavits sworn by him but he failed to file a Response as ordered.
On 12 February 2016 there was no appearance by or on behalf of the father and the mother’s application proceeded to undefended hearing.
Background
The mother and father commenced a relationship in about 2005 but did not commence cohabitation until 2009 at which time the mother was in the early stages of pregnancy with the child. The mother and father physically separated in February 2010 but continued their relationship until February 2013.
The child is the only child of the parties’ relationship.
The mother has two older children from her previous marriage J, now aged almost 19, and K, now aged 13. Both children complain of abuse and violence at the hands of the father while he lived in their household, the child J asserting to his psychologist that violence in the household was “common”.
The mother complains that from the time of birth of the child the father had no time for the child and the mother and would regularly go off on leave the mother with the child and her other children.
The mother gives a long history of the father’s lack of or inappropriate engagement with the child both before and after separation. The father was irregular and inconsistent in spending time with the child. On one occasion without the mother’s consent he collected the child from day-care and retained the child for several days.
The relationship between the father and mother was not assisted by the conduct of the father’s new partner who was aggressive and abusive towards the mother, such conduct causing the mother to absent herself from changeovers for the early part of 2014.
The issue of changeovers for the child’s time with the father was an ongoing vexed issue between the mother and father.
The child’s time with the father became more regularised following interim orders of May 2014 although some difficulties were occasioned by the mother’s ill health in December 2014.
In May 2014 the mother received a referral from Dr L paediatrician for the child to attend upon a psychologist in relation to behavioural issues. The psychologist subsequently referred the mother to Dr M, paediatrician for investigation as to whether the child was within the autism disorder spectrum.
In January 2015 the father was involved in a motorcycle accident and was hospitalised. The mother was able to reach some agreement that the father’s time would be facilitated with the child by effecting changeovers with the father’s partner.
However, from 25 July 2015 the father has not spent time with the child. He cancelled each occasion that the child was proposed to spend time with him.
The child was hospitalised for 13 days from 21 August 2015. The father and his partner attended at the hospital on 27 August 2015 after visiting hours. There was conflict at the hospital between the father and mother, with the father intent on discussing these proceedings with the mother notwithstanding the primary issue being the child in hospital. Subsequently the father threatens the mother with legal proceedings if she permitted the child to undergo any medical procedures. The mother’s response to the father was robust.
Following his admission to hospital the child had a medical follow-up appointment on 19 November 2015 after having attended upon a neurologist for further investigation
In 2015, on the child’s birthday, the mother received communication from the father enquiring as to whether the paternal grandparents could spend some time with the child. The paternal grandparents attended at the mother’s home and spent some time with the child at their home where the father and his partner were present.
The mother expresses concern about the father attending the child’s medical appointments by reason of their past conflict and the father’s lack of engagement in relation to the child’s ongoing health difficulties. Further the mother’s two older children J and K are opposed to coming into contact with the father due to past history.
In the affidavit material filed by him the father in substance makes various submissions as to the orders sought by the mother. He concedes not having prescribed time with the child for a significant period. He proposes:
a)The child live with the mother;
b)Equal shared parental responsibility;
c)The child spend time with him alternate weekends during school term, half holidays, a week in each school holidays;
d)Time at Christmas;
e)Time otherwise as agreed;
f)Telephone contact as agreed;
g)That changeovers be at the Police Stations; and
h)Other specific issues orders as to exchange of information, non-denigration, the child’s passport and makeup time.
The father proposes that if he is unable to spend time with the child he give the mother 24 hours’ notice.
The father expresses concern as to the mother’s engagement of the child with various health professionals and her perceived endeavours to have the child diagnosed within the autism spectrum disorder or ADHD. Dr L is of the view that the child has no relevant allergies and as at 24 September 2015 she informed the father that there was currently no medical cause found for the child’s assertions as to pain, as claimed by the mother.
The father seeks to remain engaged in the long-term decisions relating to the child but in particular the vexed question of the child’s ongoing medical treatment. The father notes that he and the mother have never disagreed in relation to the child’s schooling, religion, where the child lives or the child’s name.
In that event to avoid further conflict on those latter discrete issues consideration should be given to an allocation of parental responsibility to both parents as to medical issues and health with otherwise remaining aspects of long term parental responsibility vesting in the mother.
The Child Dispute Conference Memorandum
The parties engaged with a family consultant on 11 November 2014 and the memorandum produced as a consequence of that engagement is Exhibit A in the proceedings.
The family consultant notes the parties being in a relationship between 2005 or 2006 and February 2013 and “it appears that the relationship was volatile”.
The family consultant identified the issues remaining in dispute to be:
a)The allocation of parental responsibility;
b)The most appropriate arrangements for the child to spend with the father; and
c)The most appropriate arrangements for changeovers of the child between the parents.
The mother made allegations that the father had been violent towards her older sons during the relationship. The father for his part reported a single incident when he intervened in relation to the mother’s eldest son J. The father suggested that his then pain management medication had influenced his mood and that in hindsight he could have managed the situation differently.
Neither party reported concerns regarding the use of alcohol or other drugs as a consideration. Both parents expressed concern to the family consultant about the mental state of the other parent but the family consultant observed “there did not appear to be any significant history of poorly managed parental mental health for either parent”.
The family consultant noted the mother’s report of a significant history of medical problems for the child including allergies, allergic rhinitis, gallstones and low tone for which the child was then being reviewed by a neurologist. The mother further reported a history of significant behavioural problems for the child and the child was currently being assessed by the Department of Psychological Medicine at the Hospital N.
The father for his part acknowledged that the child had a history of medical issues but he was uncertain as to the current state of such issues including the child’s allergies.
It was noted that it was proposed the child commence school at O School at P Town in 2015, an arrangement that the father did not oppose.
It was clear from the family consultant’s memorandum that the parties very acrimonious post separation parenting relationship with their limited capacity to communicate or reach agreement regarding the child and his needs was a significant impediment to resolution.
Parenting
The relevant principles in relation to parenting proceedings are well settled: see Goode and Goode (2006) FLC 93-286. The High Court in MRR v GRR (2010) 240 CLR 461 affirmed the legislative pathway.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) Parents should agree about the future parenting of their children; and
(e) Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
The Presumption: Equal Shared Parental Responsibility
Section 61DA of the Act provides that when making a parenting order, 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.
The presumption relevantly does not apply where:
a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];
b)…
c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of section 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
The father seeks equal shared parental responsibility. Yet he has not engaged appropriately in the proceedings. Regard has been had to the affidavits filed by him.
There are significant issues as to the child’s ongoing health issues. It is of concern that the mother whilst referring to a number of medical practitioners, with whom the child has consulted, has not placed before the court any objective evidence as to the child’s diagnosis or course of treatment. The father expresses concerns about the mother.
The child is young and notwithstanding the mother’s alleged attempts to isolate the father from the child’s health issues, he has remained engaged it appears as best he could with the child’s medical practitioners particularly Dr L.
Aspects of the parties’ relationship including assertions as to violence and conflict contraindicate equal shared parental responsibility save as to health and medical issues. The parties should share parental responsibility as to this issue with the mother to otherwise have parental responsibility for the child.
As such the presumption as to equal shared parental responsibility does not apply.
Equal or Substantial and Significant Time: s 65DAA
In light of the presumption as to equal shared parental responsibility not applying, there is no requirement that consideration be given as to whether the child spending equal time with each of the parents is in the best interests of the child and reasonably practicable, and if so, to consider making an order for such equal time. If not the Court would otherwise be required to consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and reasonably practicable.
“Substantial and significant time” is defined to include time that includes days that fall on weekends and holidays and days that do not fall on weekends or holidays and time that allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child and/or parents.
In any event, neither party contends for equal time or substantial and significant time, where the father lives in G Town and the mother at I Town, some two hours’ drive from each other.
In circumstances where the parties live in Sydney and the central west of New South Wales, the exigencies of distance and cost render both equal time and substantial and significant time impracticable. Time will of necessity be limited to school holidays and weekends during school term.
Accordingly orders to be made as to the child’s time with the father must be considered in the light of the best interest considerations.
Best interests of the child: s 60CC
Returning to the remaining two issues identified above, they are:
a)The most appropriate arrangements for the child to spend with the father; and
b)The most appropriate arrangements for changeovers of the child between the parents.
The overview of the evidence above touches on these issues and they are considered below in the context of the best interest considerations.
The Primary Considerations: s 60CC(2)
The primary considerations are:
a)The benefit to the child of having a meaningful relationship with both of the child's parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In Mazorski & Albright [2007] FamCA 520 Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark (2009) FLC 93-405 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
The ICL supports the mother’s proposed orders save for discrete issues. It is agreed by the parties that the child should primarily reside with the mother. Although overshadowed by issues and conflict as to the child’s medical treatment the mother-child relationship clearly is important to the child.
The father needs to reengage in a meaningful way and communicate respectfully and cooperatively with the mother for his relationship with the child to be meaningful into the future. It is apparent that the parties will need to work together on the one issue of the child’s health.
Subject to the exigencies of distance the child will it is hoped maintain a close and meaningful relationship with both parents.
Risk
A consideration of the need to protect the child (s 60CC(2)(b)) arises in the context of the parties’ conflictual and “volatile” relationship. The risk is that the child might be exposed to continuing conflict that such would have a detrimental psychological effect on the child. Both parties need to be cognisant of this and cautious as to their interpersonal relationship including that of their respective partners.
The Additional Considerations: s 60CC(3)
The additional considerations are set out in s 60CC(3) of the Act. The factors contended to be relevant are considered below. Regard has been had to all of the factors.
The child is of tender years and no relevant views have been expressed nor would they, in any event, be accorded any weight.
The nature of the child’s relationships with each parent has been explored above in the context of the mother being historically the child’s primary carer and the father’s somewhat fractured relationship with the child over the last few years. There is little evidence in relation to the child’s relationship with other persons save that it can be said the child has a relationship of sorts with the mother’s partner and the father’s partner.
The extent to which each of the child’s parents has participated in making decisions about long-term issues in relation to the child, spent time with the child and communicated with the child has been canvassed above. The opportunity of both parents to participate as to these matters is overshadowed by the parties’ conflictual relationship and the history of the relationship itself. It appears on the evidence that to some extent there has been an attempt by the mother to isolate the father from participation in issues relating to the child’s health. Having regard to the mother’s assertions as to significant health factors it would be inappropriate for the father to continue to be isolated in relation to this aspect of his son’s life. As discussed above the best interests of the child are indicative of the mother and father holding equal shared parental responsibility in relation to health and medical issues so as to require them both to engage appropriately in the well-being of their son who is only just six years of age.
The mother has, it appears, shouldered the primary burden of the obligation to maintain the child. There is little or no evidence as to the father’s financial contribution to the maintenance of the child in the past. It is expected that any such obligation will be subject to the usual assessment by the relevant agency.
The proposed change to the child’s present circumstances whereby he has spent little or no time with the father over the last six or seven months is as proposed by the mother a gradual reintroduction to time with the father. The father proposes from his affidavit material an immediate restoration of weekend time with the child. The mother’s proposal in circumstances where the child historically has spent significant time with the father and the extended paternal family appears overly cautious but then a gradual introduction in any event is called for so as to address the ability of the parties to behave appropriately at changeovers and to communicate with each other in a more respectful and less argumentative manner.
There are no practical difficulties and expense in the child spending time with and communicating with each of the parents. They live about two hours’ drive from each other with the mother proposing changeovers initially at the paternal grandparents’ home which is much closer to her and then after a period at McDonald’s at C Town that is partway between the mother and father’s residences.
Both parents demonstrate in the maintenance of their conflictual relationship limited capacity to provide for the child’s emotional needs. The very nature of their communication as set out in the mother’s evidence is a clear indication of this conclusion. They appear to have focused to the detriment of the child on their interpersonal conflict such that by inference the child has been inappropriately exposed to such conflict. The mother has engaged herself enthusiastically in the child’s medical circumstances and it is contended by the father that she has done so somewhat too enthusiastically to his exclusion. The child has now commenced formal schooling which will provide to him a safe haven from parental conflict and also provide further assistance if necessary through school counselling and other appropriate engagement as to any difficulties that he has intellectually and emotionally in the school context. It is hoped that both parents will use this resource if necessary.
Both parents have displayed an inappropriate attitude to their responsibilities of parenthood. Their ongoing conflictual relationship, the father’s conduct during the relationship and thereafter, the mother’s attempts to isolate the father from the child’s medical issues have all combined to undermine the quality of their parenting.
Notwithstanding the mother’s complaints as to the father’s behaviour there is no family violence order that applies currently or has applied in relation to the child or a member of the child’s family.
It is preferable to make orders in the context of these proceedings that would be least likely to lead to further litigation. In this regard it is appropriate to introduce a staged regime in an endeavour to restore the child’s relationship with the father and to regulate the relationship between the father and mother appropriately.
Discussion
The mother seeks a limitation of the child’s time with the father to a period of three hours each alternate Saturday, then progressing after two months to a period of five hours on a day only basis. This notwithstanding interim orders in May 2014 that provided for the child to spend time with the father from Friday afternoon to Sunday afternoon on alternate weekends with that time it appears substantially occurring until mid-2015.
Whilst, as discussed above, it would be appropriate to recommence the child’s time with the father on a staged basis, such limited time as sought by the mother will not facilitate quality time between the father and child by reason of the distance between the parents.
In the circumstances it would be appropriate that for a period of two months the child spend time with the father on a day only basis from 9:00am to 5:00pm each Saturday and thereafter such time to progress to be from 9:00am Saturday to 5:00pm Sunday and thereafter there be a further progression to time from 6:00pm Friday to 5:00pm Sunday. The return by 5:00pm on Sunday would facilitate the mother settling the child before the commencement of school the next day.
As to school holidays the mother’s application is silent. Subject to the father being reasonably available to the child during school holiday periods, and thus being on leave from employment, it would be appropriate for the child to commence spending time in the mid-year holidays on an equal basis with the mother and father with two periods of a week during the Christmas school holiday period commencing in the 2016/2017 Christmas holiday period.
The mother seeks orders that the father’s time be suspended on special days and it is appropriate that the child be able to spend time with the father on the Father’s Day weekend and during the Christmas festive period. To avoid unnecessarily complex orders family birthdays will fall as they will subject to any other agreement between the mother and father.
The mother in final submissions agreed that in the absence of evidence from the paternal grandparents as to their willingness to facilitate changeovers that changeovers should be at the McDonald’s Family Restaurant at C Town. Such a venue appears appropriate for a child of this age and into the foreseeable future.
The mother complains that the father has been irregular to some extent in spending time with the child before mid-2015 and in submissions sought an order that the father be required to notify her by SMS or email communication not less than 48 hours before the child’s time with the father is to commence if he proposes to exercise such time. Having regard to the distance to be travelled to facilitate changeovers a confirmation in such a manner from the father is appropriate and such an order will be made.
The ICL supported the mother’s proposal as amended in submissions and contended that orders should be made requiring each of the parties to notify the other of any urgent medical or other circumstances arising in relation to the child when the child is in the care of the respective parents. Whilst one would have thought that such obligation would be one not requiring an order, in the circumstances of this matter such an order is appropriate.
The ICL further contended that there should be a provision facilitating the father getting information significant to the child’s welfare in particular as to health and medical issues and schooling. In the circumstances of the parties’ conflict it is not appropriate to require the mother to do all things necessary to authorise such information being made available to the father but an order will be made expressly authorising the father to obtain such information of his own volition.
Apart from defined time or time as otherwise agreed between the mother and father, the ICL saw it appropriate that there be an order that each of the parties be at liberty to attend on occasions significant to the welfare of the child notwithstanding the child is not expressly in their respective care at the time of such occasions. Such a provision would facilitate an appreciation by the child of the appropriate engagement by both his parents in events significant in his life. An order will be made accordingly.
For the reasons set out above orders will accordingly be made as set out at the forefront of these Reasons for Judgment.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 3 March 2016.
Associate:
Date: 3 March 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Remedies
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