Clay & Byrnes
[2008] FMCAfam 549
•4 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CLAY & BYRNES | [2008] FMCAfam 549 |
| FAMILY LAW – Parenting – spending time with – 3 year old child – IVF procedure. |
| Family Law Act 1975 |
| Applicant: | MR CLAY |
| Respondent: | MS BYRNES |
| File Number: | SYC 3611 of 2007 |
| Judgment of: | Sexton FM |
| Hearing dates: | 12 & 13 May 2008 |
| Date of Last Submission: | 13 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 4 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms D. Hausman |
| Solicitors for the Applicant: | Dimocks Family Lawyers |
| Counsel for the Respondent: | Mr K. Pierce |
| Solicitors for the Respondent: | Stewart Cuddy Mockler |
THE COURT ORDERS THAT:
All previous parenting orders be discharged.
The parties have equal shared responsibility for the child, [A] Clay born in 2005.
[A] live with the mother.
Unless otherwise agreed between the parties, [A] be known for all purposes as [A] Clay.
The mother be permitted to relocate [A]’s place of residence to the [X] area of Sydney.
[A] spend time with the father as follows:
(a)From the date of order until the end of June 2009:
(i)Each Wednesday from 8 a.m. until 12 noon increasing by one hour each fortnight until [A] is spending from 8 a.m. until 5 p.m. with the father on Wednesdays; and
(ii)On each alternate weekend from 11 a.m. until 5 p.m. alternating between Saturday and Sunday, starting with Saturday, extending to 7 p.m. during daylight saving.
(b)From the beginning of July 2009 until the end of May 2010:
(i)Each Wednesday from 8.00a.m. to 5.00p.m; and
(ii)
On each alternate weekend from 11 a.m. Saturday until
11 a.m.Sunday increasing by one hour each 6 weeks until [A] is spending from 9 a.m. Saturday until 5 p.m. Sunday with the father on alternate weekends.
(c)From the beginning of June 2010 until the commencement of the school year in 2011:
(i)Each alternate Wednesday from 8 a.m. to 5 p.m; and
(ii)On each alternate weekend from 3 p.m. Friday until 5 p.m. Sunday.
(d)From the commencement of school in 2011:
(i)Each alternate Wednesday from after school until 5 p.m. extending to 7 p.m. from the commencement of the school year in 2012 when [A] will have dinner with the father provided that such time is spent in the vicinity of [V] if the father has not moved to the [S] area; and
(ii)On each alternate weekend from after school Friday until 5 p.m Sunday.
(e)Except as otherwise provided, in 2011/12 [A] spend three block periods of 5 days in school holidays with the father as agreed between the parties and failing agreement from the first Saturday of the holidays at the end of Term 1, Term 3 and from 2 January 2012.
(f)Except as otherwise provided, in 2012/13 [A] spend three one week blocks in school holidays with the father as agreed between the parties and failing agreement from the first Saturday of the school holidays at the end of Term 1, Term 3 and from 2 January 2013.
(g)Except as otherwise provided, from the end of first term in 2013 and each year thereafter, [A] spend one week of school holidays with the father at the end of Terms 1, 2 and 3 and two weeks in Christmas school holidays, times as agreed between the parties and failing agreement from the first Saturday of the short school holidays and for two weeks from 2 January.
(h)Each Father’s Day in the event [A] is not spending time with the father from 9 a.m. until 5 p.m.
(i)
If Easter is not part of the Term 1 holidays, from 9 a.m. until
5 p.m. on Good Friday in 2009 and thereafter in years ending in an odd number and from 10.00a.m. to 5.00p.m.on Easter Sunday in 2010 and thereafter in years ending in an even number.
(j)If Easter is part of the Term 1 holidays, [A] to spend her block time with the father from 9 a.m. on Easter Monday in 2009 and thereafter in years ending in an odd number and from 10.00a.m. on Easter Sunday morning in 2010 and thereafter in years ending in an even number.
(k)On the Father’s birthday from 9 a.m. until 5 p.m. if a weekend day, or a weekday on which [A] does not attend pre-school or school, and from 3 p.m. until 7 p.m. if a weekday on which [A] attends pre-school or school.
(l)On [A]’s birthday:
(i)If on a weekend or weekday on which [A] does not attend pre-school or school, from midday until 5 p.m;
(ii)
If on a school day or a pre-school day, from 3 p.m until
6 p.m.(m)On Christmas Day in 2008 from midday until 7 p.m.
(n)From Christmas Eve at 9 a.m. until midday Christmas Day in 2009 and in years thereafter ending in an odd number.
(o)From midday Christmas Day until 5 p.m. Boxing Day in 2010 and in years thereafter ending in an even number.
(p)At any other or alternate time by agreement between the parties.
Order (6) does not apply to the following, at which times [A] shall spend time with the mother unless otherwise agreed between the parties:
(a)The mother’s birthday from 9 a.m. until 5 p.m;
(b)Mother’s day from 9 a.m. until 5 p.m;
(c)For a period of 48 hours from the time of the birth of the mother’s baby expected in August 2008 and for a period of 48 hours from the time of the birth of any subsequent baby born to the mother;
(d)[A]’s sister’s birthday from 9 a.m. until 5 p.m;
(e)On the birthday of any subsequent sibling from 9 a.m. until 5 p.m.
In the event the father will be absent from Sydney, the father give the mother at least 7 days notice by email and [A]’s time with the father be suspended provided that the mother ensures [A] telephones the paternal grandmother at least once a week during the father’s absence.
From 2011, weekend and weekday time with the father be suspended during all school holiday periods.
The parties ensure [A]’s time with the father does not occur on her pre-school days and the mother be restrained from enrolling [A] in pre-school on a Wednesday.
The mother facilitate telephone communication between [A] and the father on two occasions each week, times to be reviewed at the parties’ meeting each 6 months, referred to in Order (23), or failing agreement between 6.45 p.m. and 7.30 p.m. on Monday and Thursday evenings, with the father to telephone [A] on the mother’s landline number as soon as available, and until then on [A]’s mobile, and the mother to ensure [A] is available to take the calls.
The father facilitate the mother communicating with [A] on the telephone each second day during the school holiday periods at times to be agreed, or failing agreement between 6 p.m. and 7 p.m. on the first full day [A] is with the father and each second day thereafter with the mother to telephone [A] and the father to ensure [A] is available to take the calls.
In relation to changeover and unless otherwise agreed between the parties:
(a)The parties to collect and deliver [A] outside the boundaries of the mother’s parents’ home in [T] on Wednesdays and outside the boundaries of the father’s parents’ home at [H] on weekends;
(b)Each party to telephone the other party on that party’s mobile phone on approach at the time of changeovers so [A] is brought outside to meet the other party on arrival;
(c)When applicable, changeovers to occur at [A]’s school or pre-school;
(d)Each party attend personally at changeover unless an emergency, and in the early months of the mother caring for her new baby.
The father be permitted to attend events to which parents are invited at [A]’s pre-school and school.
Each party keep the other informed of the following information:
(a)Their respective absence from Sydney in excess of five days, by giving notice to the other by email not less than 7 days previously, or in any event, as soon as possible;
(b)Residential address, land line (if any) telephone number and mobile telephone number, with any changes to such details being notified at least 7 days in advance;
(c)Full details as to medical practitioners that [A] consults and details in relation to any appointments with the same;
(d)All child care, pre-school and school arrangements for [A].
Each of the parties sign all necessary documents to enable each of them to obtain all relevant school reports, newsletters and information in relation to the [A]’s schooling.
The information and changes in information referred to in Order (15) will be provided by notification to the other parent via telephone or email within 24 hours of the same occurring.
The father inform the mother in advance of any overnight time [A] spends with him, if [A] will be staying away from his residence or the paternal grandparents’ residence.
Each party be restrained from denigrating or permitting any other party to denigrate the other party or a member of the other party’s extended family.
Neither party to remove [A] from Australia without the prior written consent of the other party.
Each party telephone Centacare within 7 days of Order to arrange individual counselling in accordance with the recommendations of
Ms Schwarz as set out in her report of April 2008 and each party provide his/her counsellor with a copy of that report and a sealed copy of these orders when counselling begins.
Each party to participate in counselling as recommended in accordance with Order (21).
Until [A] is at least 7 years of age, the parties attend Centacare each six months, or an alternative agency agreed between them, in addition to arrangements made in accordance with Order (21), to discuss [A]’s progress and to discuss ways to assist her to move between each party’s household.
THE COURT NOTES that the parties tell the court that [A] will start her schooling in 2011.
THE COURT NOTES that the parties agree that neither party nor either party’s family members will discuss [A]’s parentage with her before she starts school and that any such discussion will be planned in one of the parties’ 6 monthly review meetings and if recommended by the counsellor, in consultation with an experienced child therapist.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All existing applications be otherwise dismissed save as to any application for costs by either party.
IT IS NOTED that publication of this judgment under the pseudonym Clay & Byrnes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYM 3611 of 2007
| MR CLAY |
Applicant
And
| MS BYRNES |
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns parenting arrangements for [A] born in 2005, now aged 3 years. [A] lives with her mother. The issue is how much time [A] will spend with her father.
After a relationship of nearly 10 years, the parties separated when the mother was 8 months pregnant with [A]. There was significant acrimony between the parties at the time of the separation and the tension between the parties continues. [A] spent very limited time with the father in her early months.
[A] was born as a result of an IVF procedure. Her biological father is the father’s brother, Mr C, who is married with a daughter [B], approximately 2 years older than [A], with whom [A] spends time.
After the parties’ separation, the father lived with his parents at their home in [H] for 2 years before moving to his property at [L], where he remains living. The mother remained living with [A] in the former matrimonial home at [G] after [A]’s birth, until [A] was 15 months old. The mother cared for [A] full time until October 2005 when she returned to work three days a week and worked a fourth day each week from her home. Her parents at that time played a significant role in [A]’s care. In July 2006, the mother and [A] moved to live with her parents at their home in [T] and [A] spent time with her mother and maternal grandparents every day. The mother has re-partnered and she and her fiancé have purchased a home in [V]. In September 2007, the court restrained the mother from moving [A]’s place of residence from [T] to [V] until final hearing. At final hearing, the father consented to the mother relocating with [A] to [V] and the court discharged the restraining order. The mother and her fiancé, Mr G, are due to have a baby girl in early August.
The father commenced these proceedings in October 2005 when [A] was 6 months of age. Interim orders have been made and varied at different times since December 2005 providing for [A] to spend time with the father.
The father’s application for final orders was transferred to this court in June 2007. In September 2007, this court made final orders for the parties to have equal shared parental responsibility and for [A] to live with the mother. On an interim basis, the court ordered by consent, that [A] spend time with the father each Wednesday morning for 4 hours, each Friday afternoon for 4 hours, each Sunday for 5 hours and for a few hours on other special days including [A]’s birthday. The court ordered that changeover occur at the playground in [X] Park, [T]. The court made an order for the parties to attend Centacare to improve their co-parenting relationship to assist [A] to move comfortably between her two parents “so that time with her father can gradually increase.”
The father says the current interim orders are working well for [A], though acknowledges [A] has at times been distressed at changeover. The mother says [A] is not coping well with the current arrangements.
On a final basis, the father seeks orders for a graduated regime which provides for [A] to spend 4 to 5 nights a fortnight with him by the time she starts school and 5 nights a fortnight as soon as possible after that, in addition to holiday time and time on special days. The father says he is keen to be involved in [A]’s education and wants [A] to have the opportunity to spend time with him at his farm at [L] and time with his extended family. On a final basis, the mother wants a regime that provides for daytime only until September 2009, and then for one full day during each week and alternate weekends from Saturday afternoon until Sunday morning, increasing to alternate weekends from Saturday morning until Sunday afternoon when [A] is 5 years old, as well as some holiday time and time on special days.
The family reporter, Ms Julia Schwarz, says [A] presented as a quiet, reticent child who was watchful and careful in her interactions with her. She says in her report [1]:
[A] presented as a sensitive child with a history of a degree of discomfort in the changes in her care…. She appears to be a child who struggles with changes and her present circumstances have made it difficult for her to experience established routines.
[1] Exhibit 1 at paragraphs 51 and 52
In Ms Schwarz’s opinion, now that [A]’s relationship with her father has been established, it is in [A]’s best interests to have fewer visits to her father each week, gradually extending one visit to a full day, and to have fewer telephone conversations. Ms Schwarz says [A] needs the chance to settle between visits, so the days she spends with her father should be well separated. She says if [A] is eventually to have overnight time with her father at his farm at [L], the father should have the chance to introduce [A] to [L] which, given the travel time, requires [A] to spend a longer day with him. In Ms Schwarz’s opinion, 3 to 4 visits a fortnight is enough for [A] at present.
Ms Schwarz suggested a gradual increase in the number of hours spent with the father on one day each week, until [A] has a full day with the father. In her view, [A] should not start overnight time until she is around 4 years old, she is more verbal and she is comfortable with longer days, perhaps sometime between April and September 2009. She suggested a natural progression to overnight time in alternate weeks until [A] starts school, and believed it important for [A] to spend the alternate week at her home base and for changes in her routine to be minimised, particularly before overnight starts. She believed [A] may benefit from seeing her father in the alternate week without spending overnight with him, given the level of psychological and physical organisation mid-week overnight requires. She counselled against any change in arrangements occurring in [A]’s first term of school. Ms Schwarz recommended the court take a cautious approach to increasing time between [A] and the father, so that [A] welcomes the additional time occurring. Ms Schwarz said it was important for [A] to spend special family events with her new sibling, and that if the father were to be away at any time, [A] should stay with her mother. She saw no benefit to [A] in spending the father’s allocated time with the paternal grandparents or the father’s extended family if the father was unavailable.
The father is 38 years of age. He lives alone on his farm at [L] in Sydney’s south-west. He is a self-employed in the Healthcare Industry. The father has flexibility in his work arrangements. At hearing the father consented to the mother moving with [A] to [V]. The father said he intends to re-locate to the [S] area within two years, or at least before [A] starts school so he can be more closely involved with [A]’s education.
The mother is 36 years old. She has been living with her parents in [T] and spending significant time with her fiancé in their jointly owned home in [V] since the current interim orders were made in September 2007. Since the second day of this hearing, the mother has been free to move with [A] to [V] permanently. The mother works in the Healthcare Industry. She works Mondays to Wednesdays each week at [Z] in [W], and usually Thursdays each week from home. The mother’s mother cares for [A] when the mother works, with help from the mother’s father. The mother is engaged to Mr G and in March 2007, they bought a home together in [V] which they have renovated. Their baby girl is due in August.
As already noted, there is significant tension between the parties. The mother has a poor relationship with the father’s family and the mother’s parents remain angry with the father for his conduct towards the mother at the time of separation. The mother claims the father’s past conduct has caused her a great deal of distress and that he interacts with her inappropriately in front of [A] causing [A] a great deal of distress. Although she says she accepts that it will happen, the mother is upset by [A] having to spend time with the father. The father, for his part, claims the mother is obstructing the development of his relationship with [A] and the mother would prefer her fiancé to replace him as [A]’s father figure.
Legal principles
The principles governing this case are set out in Part VII of the Family Law Act 1975. Section 60CA provides that I must regard the best interests of the child as the paramount consideration. To determine the child’s best interests I must consider the primary considerations set out in section 60CC(2) and the 13 additional considerations set out in section 60CC(3). Section 60CC(4) requires me to consider also the extent to which each party has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities. Although the two primary considerations must assume greater importance than the additional considerations when determining what orders are in the best interests of the child, I must consider all the factors before making a determination.
The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I give these matters very careful consideration because the Act provides that they are primary considerations and because they are consistent with the first two objects of the Act set out in section 60B to which I must have careful regard.
The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:
·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
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects include that children have the right to know and be cared for by both their parents; have a right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care; parents jointly share duties and responsibilities concerning the care, welfare and development of their children; parents should agree about the future parenting of their children.
THE PRIMARY CONSIDERATIONS
The benefit to the child of having a meaningful relationship with both the child’s parents.
[A] has lived with her mother all her life and it is common ground that [A] has a close and loving relationship with the mother. Although
Ms Schwarz observes a “slight anxious quality in the attachment” the parties agree that [A] will primarily live with the mother in the future and will continue to benefit from her close relationship with her.
The mother acknowledged to Ms Schwarz that she has in the past questioned the importance to [A] of having a relationship with the father, but now accepts [A] would benefit from a meaningful relationship with the father. The questions are, in the particular circumstances of this case, how much time [A] should spend with her father to ensure her relationship with the father is meaningful, and how much time [A] should spend with her father to maximise the benefit she gains from that relationship.
[A] has been spending regular time with the father since she was
8 months of age, her time with the father having increased to 3 periods of a few hours a week in the last several months. The father describes [A] as being happy and contented in his presence. He says [A] “appears excited when she sees me and will walk freely from (the mother) towards me.” He says on Wednesday mornings, which he and [A] spend with [A]’s young cousin [B] and her paternal grandparents, [A] is in no hurry to leave at the end of her time with him. On Fridays the father says [A] enjoys further time with her paternal grandparents and other members of his extended family. On Sundays the father says [A] enjoys attending children’s Mass with him, their special outings and visits to friends and family. The father says he calls [A] every night on the phone and she appears to enjoy their conversations.
Ms Schwarz observed [A] refusing to leave her mother and her fiancé to enter the observation room with her father and paternal grandmother on the first occasion she attempted an observation. [A] cried and said she did not want to go. Ms Schwarz says “although she initially seemed genuinely upset, her cries did eventually have a slightly mechanical quality.”[2] Ms Schwarz arranged a second observation and [A] seemed “happy and playful” when she arrived with her father. Ms Schwarz says “the atmosphere was playful and [A] seemed to enjoy interacting with her father although, at times, she appeared a little self-conscious and tense and their play seemed a little forced.” [3]In cross-examination, Ms Schwarz said that while [A] was not scared of her father, she was a little wary of him at times.
[2] Exhibit 1 at paragraph 43
[3] Exhibit 1 at paragraph 49
Although the father downplays the issue, telling Ms Schwarz [A] was “rarely upset”, there is no dispute that [A] has shown a level of separation anxiety when leaving her mother at changeover to go to her father, just as she did when first observed by Ms Schwarz. Ms Schwarz said it was difficult to determine the source of her anxieties and in her view there are a number of contributing factors: the early schedule occurring at 8 months and the other changes and separations which occurred when the mother moved house and the mother went to work. [A] moved from the former matrimonial home at 15 months. She has since been spending time between her father’s home, her paternal grandparents’ home, her maternal grandparents’ home and her mother’s new home with the mother’s fiancé at [V]. I accept Ms Schwarz’s view that it has been difficult for [A] to experience an established routine. Ms Schwarz assessed that leaving her mother was the more anxiety-provoking event for [A], than going to the father. She suspects that [A] is aware of her mother’s distress about her contact with the father.
Ms Schwarz says an important aspect of [A]’s reactions is the quality of her relationship with the father. She says [4]:
[A] appeared to be quite familiar with Dr Clay and as reasonably comfortable in his care… Dr Clay presented as unconfident at times, and a little rigid in his responses to [A]… there did appear to be some limitations in his attunement to [A]’s mood and emotional needs. Although not assessed as serious deficits, these aspects are likely to play a more significant role for [A] in the current context of hostility and distrust between the parents.
[4] Exhibit 1 at paragraphs 56 and 57
I accept and have regard to Ms Schwarz’s assessment of the struggle the mother is having with the contact, the father’s limitations in responding to [A]’s emotional needs and the quality of the current relationship between [A] and the father. I find these factors must be carefully balanced when considering the parenting arrangements which are most likely to benefit [A]. Although I accept Ms Schwarz’s opinion that [A] would benefit from each party seeking professional assistance to help her with changeovers and to better respond to her emotional needs, I give considerable weight to Ms Schwarz’s assessment of the present difficulties [A] faces when spending time with her father.
The need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.
There are no concerns in this case about physical harm, abuse, neglect or family violence. However, each party raises concerns about psychological harm being caused to [A] by the other party.
The father claims the mother is attempting to marginalise him as [A]’s father, and is prioritising [A]’s relationship with Mr G. The father says this will cause [A] harm. The father reports the mother as saying, “[A] crying and holding onto me is indicative of [A] not wanting to see you. You should leave us both alone.” The father contends that the mother has confused [A] by using the name [A] Byrnes instead of [A] Clay. The father believes it is very important for [A]’s long term psychological development that she has the opportunity to develop a close relationship with him and his extended family, including his brother Mr C. The mother deposes to a conversation between her and the father on 28 March 2008 when the father rang her shortly after changeover and said “You have to do better [Ms Byrnes]. She [[A]] feels rejected, she feels like she is losing you. Why is it?... you are going to hurt your daughter and it’s unforgiveable. Why is my daughter scared of me?”
The mother claims that [A] is being harmed by the distress she experiences at changeovers and at being forced to spend time with the father. She says [A] has called her 11 times between October 2007 and April 2008 begging to be collected early. She says she screams and kicks at changeover to avoid going to her father. The mother told
Ms Schwarz that [A] collects lots of items to take with her before visits, such as favourite toys, books and clothes and is now doing the same before ordinary outings with her. The mother’s parents reported to Ms Schwarz Sarah “kicking and screaming” at changeover during the early stages and to her still being upset when she has to go to the father.
I accept the father’s view, shared by Ms Schwarz, that the mother is distressed and resistant to [A] having to spend time with her father. I am also satisfied that [A] is frequently distressed at changeover. I give some weight to my findings under this factor.
THE ADDITIONAL CONSIDERATIONS
The child’s expressed views and the weight those views should be given.
[A] is only just 3 years of age. She has not expressed any views as to what she might want. This is not a factor I take into account.
The nature of the relationships between the child and each parent and the child and other persons.
I have already noted and accept the observations made by Ms Schwarz as to the nature of [A]’s relationship with each parent. I accept [A] has a close and loving relationship with the mother which has in it an element of anxiety.
I accept Ms Schwarz’s assessment of [A]’s relationship with her father. She described [A] as “quite familiar with Dr Clay” and as “reasonably comfortable in his care”… as “more wary than with her mother or
Mr G, possibly because there have been fewer opportunities forDr Clay to be involved in her basic care.” I find the father does not acknowledge any limitations in his relationship with [A], which he needs to do. He said to Ms Schwarz that [A] “adores me.”[5] He told Ms Schwarz that [A] “appears content and settled when she is with me. She is always laughing and smiling and is affectionate towards me.” I accept Ms Schwarz’s opinion that the father appeared to have difficulty acknowledging [A]’s reticence and that “this may be contributing to his difficulty addressing it” or he may be “fearful that without this minimisation, the contact will be reduced” or “it is possible he is genuinely oblivious, at times, to her cues.” [6][5] Exhibit 1 at paragraph 28
[6] Exhibit 1 at paragraph 58
I am satisfied on the basis of the father’s evidence that [A] enjoys a close relationship with her cousin [B] and a warm relationship with his parents, the latter being confirmed by Ms Schwarz’s observations, with whom [A] has spent regular time since she first started spending time with the father. I accept the father’s evidence that [A] spends time with her biological father Mr C, the father’s sister, his brother’s wife, his sister’s husband and the father’s aunty and that [A] enjoys those relationships which the father regards as very important for [A].
The mother says [A] is very close to her parents with whom she has spent a great deal of time since she was born and Ms Schwarz observed [A]’s warm relationship with her maternal grandparents. Ms Schwarz also observed how comfortable [A] was with the mother’s fiancé,
Mr G. I accept this evidence.
I take these matters into account.
The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent.
The father complains that the mother prevented him spending meaningful time with [A] in the first 8 months of her life, despite his repeated requests for time with [A]. The father believes the mother has resisted [A] spending time with him, and that she does not place value on [A]’s relationship with him. He says “I am concerned that the respondent/mother is not supportive of the time that I spend with [A] and sees the time that I spend with her as onerous and unnecessary. Furthermore, I have formed the view now that she has developed a stable relationship with her current partner, she sees him as a better and more acceptable father figure for [A].” The father says the mother has no interest in nurturing a relationship between [A] and his extended family. He says she is inflexible about time arrangements and will not agree to [A] spending additional time with him beyond the time provided for in the orders. The father claims the mother has made remarks such as “you already see more of her than you deserve” “you are not her father”; “you left us, why don’t you leave us alone”; “I don’t want her to have anything to do with your disgusting family”; “she has a new father now and he is pretty nice to her”; “she would be better off if you left us alone”; “telling her that you are her father is a big lie”; “you are not her father anyway. She would be better off if you left us all alone. Why not let her just have a new father” (referring to her partner Mr G). The father says the mother refuses to share information about [A] making remarks such as “that’s none of your business”; “why don’t you ask [A]?”
The father says time with [A] became more difficult after the mother moved in with her parents at [T] in July 2006. He gives a number of examples of his attempts to spend time with [A] being blocked by the mother. The father says the mother’s parents have shown considerable hostility towards him and this makes changeover between households more difficult for [A]. The father says the mother does not want [A] to enjoy time with the father. He says after his absence away for two weeks, [A] ran over to him at changeover and the mother said “you little traitor.” The father says the mother often makes handover unpleasant and is not prepared to take steps suggested by him to make changeover easier for [A]. For example, the father says in October 2006 the mother stopped bringing [A]’s favourite toy she calls “bear” to changeover. According to the father, the mother said “… I am concerned that she is too attached to him…Her excessive attachment to it is clear evidence that your involvement with [A] is causing her psychological problems.”
The father says that since December 2005 he has tried repeatedly to increase his time with [A]. He says he has offered to care for [A] any time the mother is not available, but she has refused his offers. The father says he buys presents for [A] to give her mother on the mother’s birthday, mother’s day, Christmas day and Easter. The father says the mother never reciprocates.
The father says the mother does not share information with him which is important to [A]. For example: the father discovered the mother was pregnant when he read affidavits for these proceedings; the mother did not consult the father about [A] attending a local Catholic school in [V]; the mother did not tell him she was engaged to be married; the mother has not given him her landline number; the mother has not consulted him about [A]’s extra curricular activities.
The mother deposes to the father making abusive comments at changeover about Mr G and to inappropriately suggesting in front of [A] that they should all be living together. Ms Schwarz reported the father making “some rather scathing comments about Mr G and his relationship with Ms Byrnes.” [7] She reported the father’s communications with the mother having a “persistent, almost intrusive quality.” The mother told Ms Schwarz that she accepted that [A] should have a relationship with her father, although there had been a time when she had thought otherwise. [8]
[7] Exhibit 1 at paragraph 30
[8] Exhibit 1 at paragraph 21
The circumstances giving rise to these proceedings are particularly difficult. Having committed to having a child through the IVF programme, the parties separated just before [A] was born. It is hardly surprising that emotions have run high at times. I am satisfied the parties have at times been far more focussed on their own anger, grief and disappointment than on [A]’s needs. I find each party has at times behaved inappropriately without always considering the impact of that behaviour on [A]. However, [A] is now 3 years old. [A] has now become familiarised with her father and spends regular time with him. The mother now acknowledges the importance for [A]’s short and long term welfare of knowing and enjoying a good relationship with her father and her paternal family, and has herself sought orders to enable [A] to have that opportunity. The father acknowledges the importance of [A]’s relationship with her mother, and by consenting to the mother’s move to [V], accepts that [A] will be living primarily with
Mr G and her new sister who will be born in August.
While I accept that the father has had reason in the past to be concerned about the mother’s attitude to facilitating [A]’s relationship with him, I am satisfied on balance, that the mother now recognises the importance of [A] having a healthy relationship with her father and [A]’s need for her to support the development of that relationship. I therefore do not give this factor significant weight in reaching my decision.
The capacity of each parent and any other person to provide for the needs of the child including emotional and intellectual needs; the attitude to the child and to the responsibilities of parenthood demonstrated by each parent.
There is no issue that each party has the capacity to provide for [A]’s physical, intellectual and financial needs.
I accept that the father’s mother has observed the father regularly while he cares for [A] and accept her observation that he is capable of performing all the necessary physical tasks involved in day to day parenting. The father’s friend Mr M also deposes to observing the father capably caring for [A] and I accept his evidence.
There is no issue that the mother has the capacity to care for [A] day to day as she has done as a single parent since [A] was born. I accept the mother’s mother’s comment to Ms Schwarz that the mother is a “devoted and consistent mother”.
As already noted, I have concerns about each party’s capacity to meet [A]’s emotional needs and about the attitude each party has demonstrated in the past to the responsibilities of parenthood. Fortunately for [A], this is not a case where either parent is violent, mentally ill or affected by the consumption of illicit substances. I am satisfied that where each party has capacity, as in this case, one of the fundamental responsibilities of each parent is to ensure their child has the opportunity to know and love each parent. This involves each parent affirming the other parent in the eyes of the child and giving the child emotional permission to enjoy a loving relationship with the other parent. This also involves each party communicating constructively with the other about matters affecting the child’s welfare and working together to make the child’s transition from one household to the other, as smooth and stress-free as possible. I find this has not been occurring in this case. I find the high level of hostility between, not only the parties, but their parents as well, has created an extremely negative environment for [A] to negotiate the move from one party to the other.
The father complains that the mother does not communicate with him about important events and does not affirm him in [A]’s eyes. The father complains he has been denied the opportunity to participate in important events, such as [A]’s christening, particularly as the parties had arranged for Mr C, [A]’s biological father, to be [A]’s godfather. The father complains that the mother has tried to undermine his role in [A]’s life. The mother complains that the father is insensitive towards [A] by raising issues in front of her that cause the mother and [A] distress. The mother complains that the father does not respond appropriately to [A]’s needs, refusing to return her to the mother when she is begging to return home. The mother complains that the father abandoned her and [A] before [A] was born, showing a serious disregard for the consequences for [A].
There may be truth in some of these complaints. However, I am satisfied that whether or not either party has a basis for making these complaints, it is unhealthy for [A] to be subjected to the level of tension and hostility which has existed between the parties and their families. I agree with Ms Schwarz when she says, “it is important that [A]’s interaction with her father, and the time spent with him, is presented positively, rather than as an intrusion.” [9]
[9] Exhibit 1 at paragraph 61
I give significant weight to this factor.
The extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent including spending time with the child, participating in decision –making about his/her welfare, and facilitating the other parent to do the same, and the extent to which each parent and party has fulfilled his or her obligation to maintain the child.
The father says he paid the mortgage and outgoings on the former matrimonial home until the parties’ property settlement in June 2006. In addition, until October 2005 the father paid $1,000 a month towards [A]’s support. The father says he pays for clothes and shoes for [A], most of which he gives to the mother. He pays for [A]’s activities, such as swimming lessons. He has paid child support in accordance with the Agency’s assessment. The mother raises no complaint about the father’s level of financial support for [A] and I am satisfied the father has fulfilled his obligations in this regard.
The mother has worked in the paid workforce since [A] was 6 months old and I am satisfied has provided for the majority of [A]’s financial needs.
I have previously referred to my concerns about each party’s failure to address [A]’s emotional needs adequately in the past.
The likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either parent or any other child or other person with whom the child has been living.
I have earlier referred to [A]’s close attachment to the mother.
[A] has just moved permanently to live with the mother and Mr G in [V]. The mother plans to enrol [A] in pre-school one or two mornings a week. That routine will be new to [A]. Her maternal grandparents will be caring for her while her mother works, at [V]. That will be new to [A]. [A] will have to adjust to a new baby sister in her life in August. These are significant changes for a child of only 3 who has already experienced a number of significant changes. Ms Schwarz says [A] needs time to settle into a routine, time to settle between visits to her father and to look forward to the next one. Ms Schwarz says that [A] should experience the fewest possible changes to her routine prior to overnight time occurring. Ms Schwarz says [A] “appears to be a child who struggles with changes”. I accept Ms Schwarz’s views.
I give significant weight to my findings under this factor.
The practical difficulty and expense of a child spending time with and communicating with a parent
Expense is not a significant issue. However, geographical distance is. [A] is living with the mother in [V]. The father lives in [L], on the other side of Sydney. Although the father plans to move to [S], until he does so, [A] will be required to travel a long distance to spend time with the father, although not as far when the father spends their time together at his parents’ home at [H].
I take this practical consideration into account.
Any family violence involving the child or a member of the child’s family and any family violence order that applies to the child or a member of the child’s family if the order is a final order or the making of the order was contested.
This is not a factor in this case.
The orders which would minimise the risk of there being further court proceedings about the child and whether those orders would be preferable.
I have made orders on a final basis in the hope future litigation between these parties can be avoided. I have made an order that the parties meet to discuss [A]’s progress and welfare each 6 months until she is at least 7 years of age. I have made an order for each party to attend counselling to learn to help [A] with changeovers. I have made an order for each party to attend counselling to address the particular issues each party faces individually and which Ms Schwarz believes each party needs to address. I urge the parties to take advantage of this counselling to minimise the risk of further court proceedings.
PARENTAL RESPONSIBILITY
The parties agreed to share parental responsibility equally and a final order was made to this effect in September 2007. Section 65DAC applies whenever a parenting order provides for equal shared parental responsibility. The court is therefore required to consider whether making orders that the child should spend equal time, or if not equal time, substantial and significant time with each parent would be in the best interests of the child and whether it is reasonably practicable. Substantial and significant time includes days that fall on the weekend and weekdays and allows for each parent to be involved in the child’s daily routine and on occasions of significance to the child and to each parent. Whether an arrangement is reasonably practicable requires the court to have regard to a number of factors: how far the parties live apart; the parties’ current and future capacity to implement the arrangement; the parties’ current and future capacity to communicate with each other and resolve difficulties which might arise in implementing the arrangement; the impact of the arrangement on the child; any other relevant matter. The court must regard the best interests of the child as the paramount consideration.
Neither party in this case seeks orders for equal time. Neither party seeks orders for substantial and significant time at this stage. The father however, seeks orders that provide for [A] to spend substantial and significant time with him in the future, being 5 nights a fortnight, half holidays and special days. Given the geographical distance between the parties, the parties’ poor communication and lack of trust in each other, and the nature of [A]’s relationship with the father, I am neither satisfied it is reasonably practicable for [A] to spend substantial and significant time with the father in the future, nor, given the circumstances of each party and the other matters to which I have already referred, am I satisfied it is in [A]’s best interests for this to occur.
Additional comments
Ms Schwarz says in her report [10]:
In summary, [A] presented as a developmentally normal three year old child who enjoys warm relationships with her maternal and paternal family members. Her closest attachment seemed to be with her mother, with an element of anxiety in this relationship. She seemed responsive to her father’s company, but a little uncertain of him and finding perhaps less comfort in his company during times of stress.
[10] Exhibit 1 at paragraph 50
I found Ms Schwarz’s observations and opinions of great assistance in this case. The factual findings I have made are consistent with her views. I am not satisfied the present parenting arrangements are working well for [A] and I am concerned that if the stress [A] is presently experiencing is allowed to continue, [A] is likely to suffer in both the short and long term.
I find the parties need to improve their communication and need to work out ways to help [A] manage changeovers; the mother needs to come to terms with [A]’s need to have her father in her life, and the father needs to learn to respond more effectively to [A]’s emotional cues. Ms Schwarz recommends that the father seeks professional input regarding assisting [A] at changeovers, as well as input regarding the time he spends with [A]. She suggested the latter input be preceded by an observation of [A] with the father. She recommends the mother seeks professional input regarding assisting [A] at changeover times and in relation to coming to terms with [A]’s need to have time with her father. She recommends the parties seek professional input separately. I am satisfied that [A] is likely to benefit from each party obtaining professional assistance as recommended by Ms Schwarz and I have therefore made orders in accordance with these recommendations.
Conclusion
I accept Ms Schwarz’s opinion that [A] is unsettled, her present circumstances having made it difficult for her to experience established routines. I accept that [A] is most closely attached to her mother and is comfortable in her relationship with Mr G. [A] will shortly have a baby sister and the mother plans to take maternity leave and then to seek work locally in the [V] area. The mother plans to enrol [A] in pre-school in the area. [A]’s home base will be in [V] with the mother,
Mr G and her baby sister. From there she will go to pre-school, then school. I agree with Ms Schwarz that [A] needs time to settle into her new situation with as little disruption as possible. Ms Schwarz says
.. the benefits of achieving a main base and regular routines are likely to have a positive effect on her perception of contact. [11]
[11] Exhibit 1 at paragraph 62
The father’s future arrangements are less certain. He is presently living alone on his farm in [L], but spends some time with [A] at his parents’ home in [H]. He is keen to spend more time with [A] at his farm at [L] where he has animals and rural activities for her to enjoy. The father says he plans to move to the [S] area in approximately 2 years, or at least before [A] starts school but to keep his farm for [A] to enjoy during holidays.
[A] is 3 years old. It is difficult to predict the best parenting arrangements for her in the long term. That will depend on many factors, including but not limited to the parties’ ability to communicate and work together for her benefit and how her relationship with the father develops.
I accept Ms Schwarz’s view that the court should be cautious in increasing time between [A] and the father. I am persuaded that if the orders provide for more time between [A] and the father than [A] can emotionally manage, it is likely to be detrimental to that relationship and not in [A]’s best interests in either the short or longer term.
Ms Schwarz recommends the current visits between [A] and the father be reduced to 3 to 4 times a fortnight, rather than 3 times a week and that some of these visits be gradually extended to full days. She recommends changes to [A]’s routine be minimised until overnight time starts. She recommends overnight not be considered until [A] is 4 years old, more verbal and settled with the longer days. She recommends that the number of weekly telephone calls be substantially reduced. She recommends that once [A] is spending two consecutive nights with the father, these be fortnightly and that time in the alternate week not extend to overnight, at least in the foreseeable future.
Ms Schwarz recommends that [A]’s time with the father be spent with him personally, if at all possible. She does not recommend [A]’s allocated time with the father be given to her paternal grandparents or other members of the father’s family, in the father’s absence. She believes [A] may find a shorter block of nights (two or three) per fortnight more enjoyable. She says
This less extended schedule provides [A] with a greater sense of a main base, which may be undermined by too many nights away from her home. Furthermore, with the advent of the birth of
Ms Byrnes’ second child, [A] will have an even greater need for consistency and predictability.
The mother supports the recommendations of Ms Schwarz in relation to time [A] spends and communicates with the father. The father wants considerably more time than Ms Schwarz recommended.
As already noted, I have decided it is in [A]’s best interests to spend regular time with the father, with gradual increases along the lines recommended by Ms Schwarz. I agree with Ms Schwarz that the court should take cautious steps. I have decided that the first stage will involve [A] spending 3 periods a fortnight with the father. Two of those periods will soon increase to full days. I am satisfied that this arrangement provides [A] with sufficient time to build her relationship with the father, while limiting the substantial travel her time with the father will involve and allowing her time to settle into her new home and into her new home situation with Mr G and the new baby. I find it likely, that given the breaks between each period, [A] will look forward to her next visit. The second stage will begin when [A] is 4 years and 3 months of age. This is within the range recommended by Ms Schwarz, and again, I am satisfied it is in [A]’s best interests to err on the side of starting a new regime later, rather than earlier. By the end of June next year, [A] will be well settled at [V], will be well settled at pre-school and will be well established in her routine of long days with her father. I am satisfied on balance that [A] will then be ready for overnight time with the father. From July 2009 for approximately a year, [A] will spend one overnight a fortnight with her father, the times gradually increasing. She will continue to spend a full Wednesday with the father each week. From June 2010 until she starts school in 2011, [A] will spend an alternate weekend involving two consecutive nights with the father and her weekly full day visits will reduce to one Wednesday a fortnight. This will then change to alternate weekends and alternate Wednesday afternoons when [A] starts school.
The mother asks that changeover occur either at school or pre-school or a neutral venue which the father accepts. However, I agree with
Ms Schwarz that it is preferable for changeovers to occur at a residence or at pre-school/school rather than at a park or public venue. Because these orders will be long term, I am satisfied it is in [A]’s best interests to have changeover occur at her parents’ or grandparents’ homes rather than in an artificial public setting. While I have left it open for the parties to work out the best venue for themselves, I have ordered that if they are otherwise unable to agree, changeover occur at the homes of their respective parents.
I have made further orders and notations in relation to other agreed issues. [A] will be known as [A] Clay. [A] will not be told about her parentage until she is at school and the parties will consult about how best to deal with this issue.
I am guided by the objects and principles already referred to. Having regard to all these matters, I am satisfied the orders set out at the beginning of these Reasons are in [A]’s best interests.
I certify that the preceding 74 paragraphs are a true copy of the reasons for judgment of Sexton FM.
Associate: Skye Owen
Date: 4 June 2008
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