Clement and Clement - [2009] FamCA 1355

FAMILY COURT OF AUSTRALIA

CLEMENT & CLEMENT

[2009] FamCA 1355

FAMILY LAW – CHILDREN – With whom a child spends time – Child's views – Best interests of a child

Family Law Act 1975 (Cth)

APPLICANT:

Mr Clement

RESPONDENT:

Ms Clement

FILE NUMBER:

PAC

2925

2008

DATE DELIVERED:

20 November 2009

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Collier J

HEARING DATE:

20 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Greenaway

SOLICITOR FOR THE APPLICANT:

REIMER WINTER WILLIAMSON

COUNSEL FOR THE RESPONDENT:

Mr Dowd

SOLICITOR FOR THE RESPONDENT:

WATTS MCCRAY

Orders

That all existing parenting orders in respect of the child E born … September 2002 be and are hereby discharged.
That the parents have equal shared parental responsibility for the said child.
That the said child live with the mother.
That the said child spend time with the father as follows:
(a)Each third weekend from after school Friday to 5pm Sunday extending to 5pm Monday in the case of a non-weekend.
(i)The first such weekend is to be in accordance with the current regime.
(b)During short school holidays from 5pm on the last day of term to 5pm on the Saturday closest to the midpoint of the holiday period.
(c)During the December 2009 / January 2010 school holiday period and each alternate year thereafter from 10am on 27 December to 5pm on 6 January and from 10am on 17 January until 5pm on 26 January.
(d)During the December 2010 / January 2011 school holiday period and each alternate year thereafter from 10am on 23 December to 5pm on 2 January and from 10am on 11 January to 5pm on 17 January.
That for the purpose of the father spending time with the child:
(a)The father shall ensure that he notifies the mother of his availability to collect the child from school.
(b)If shall be the father’s responsibility on all occasions to collect the child from school and in event he is required by these Orders to collect the child at times other than the conclusion of school he is to collect the child from the mother’s place of residence.
(c)It shall be the father’s responsibility to return the child to the mother’s home at the conclusion of each period of time he spends with the child.
That the father ensure the child is made available to attend swimming activities every second Friday the child spends time with him.
That within seven days from the date of these Orders, the mother do all things and execute all documents necessary to include the father’s name in any document entitling him to communicate with the child’s school and receive all documents relating to school activities.
That each party keep the other advised of up to date contact telephone numbers and residential addresses.
That each party shall ensure the other is notified as soon as practicable in the event of any accident or emergency involving the child whilst the child is in their care.
That all outstanding applications be and are hereby dismissed.
That all issues be removed from the Active Pending Cases List.
That all material produced on subpoena, if any, be returned not before fifty-six days from the date of these Orders.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2925 of 2008

MR CLEMENT

Applicant

And

MS CLEMENT

Respondent

REASONS FOR JUDGMENT

Introduction and Background

This matter concerns the future arrangements for the parenting of the parties’ only child, E, who was born in September 2002 and is thus now seven years of age. The parties now live a very considerable distance apart, the mother in a suburb of Sydney and the father in Townsville. The parties married in September 2001 and separated on 20 March 2003. The child was thus six months of age when that separation occurred. The parties entered into consent orders on 3 December 2003. Those orders were quite ill-defined – and I do not use that word in a derogatory fashion – as to the time the father was to spend with the child. They did provide for the parties to have joint responsibility for her long-term care, welfare and development, and they provided the child was to have contact, as it was then described, as agreed and arranged between the parties.
I am told that from that point of time until the beginning of 2006 the father saw the child and the parties were able to make arrangements that very largely suited each of them in this regard. On what I have heard, I am satisfied that for that period there was at least a satisfactory level of communication between them when it came to their daughter. In January 2006, the father relocated to Townsville. This has been referred to on a number of occasions during submissions by counsel, but to my mind it is simply one fact in this matter. There is no suggestion of any blame arising or attaching as a result of that move.
Since that time, the father has continued to see his daughter roughly each third weekend and for part of school holidays. As I understand it, the cooperation of the parties, whilst perhaps not as good as it had been prior to January ’06, continued at a level where certainly the father remained very much involved in the child’s life, subject, of course, to them being almost the length of the eastern seaboard apart.

The Parties’ Applications

The father by his application now seeks some certainty as to his time with the child. Before me today, and on previous occasions, the dispute has narrowed. It seems to me that what I am left with is this: the parties have reached agreement that they should have equal shared parental responsibility. They agree that the father should have time with the child each third weekend during school term, there being some slight dispute as to when that should conclude.
The argument principally is about the time that is to be spent by the father with the child during school holidays. The father seeks 10 days, that is, the child spend 10 days with him in each short holiday period between first and second, second and third, and third and fourth terms. In respect of the December/ January school holidays, he seeks that he have four weeks during that period. There appears to be some concession that that need not be in one straight run, as it were, but can be broken into two separate periods during that holiday. A further issue is the child’s involvement in prearranged activities whilst spending time with her father. Thus, as I have said, the parties have narrowed the dispute between themselves and focused on that which cannot be resolved between them.

The Parties’ Materials

The father relies on an application filed on 20 June 2008.
The mother filed a response to 23 July 2008.
Each of the parties have somewhat refined their positions. The father relied upon a document described as a case document in which his most recent set of orders was set out.
The mother, for her part, has made available to me a document headed Terms of Settlement which accompanied an earlier document of hers.
The husband, for his part, relied upon an earlier affidavit sworn 6 June 2008, and the child responsive report which was prepared by Dr H on 21 January 2009 following interviews with each of the parties and with the subject child.
The mother, for her part, relies upon her questionnaire filed as part of the less adversarial trial and the outline of case. The evidence before me is thus to be gleaned from those materials. I have not heard oral evidence, notwithstanding that this is an application for final orders.
That is not said critically. To my mind, the matter has been dealt with efficiently and properly by counsel for each of the parties in identifying the position of their client and promoting their client’s case on the material which I have identified before me.

The Father’s Case

The father’s case is that he needs to spend as much time as possible with his daughter. He says that because he has moved far away he cannot exercise the time that might have been available to him had he remained in closer proximity. He asserts that the longer periods he seeks are absolutely necessary for him to maintain his relationship with the child. He says that ten days in the short holiday periods is, indeed, only what is appropriate and proper.
I have from him, and I accept, that he pays a significant amount of child support, and that, in addition to that, he has never sought financial assistance from the mother in respect of any funding for the transportation of the child or for himself to travel to Sydney to see the child.
Mr Greenaway, in the course of his submissions, relied, as he was entitled to, upon the child responsive report prepared by Dr H to which I have already referred. Particularly, he has relied upon the statement that the child made to Dr H that she would like to spend eight days with her father and eight days with her mother. This, he indicated, was a clear indication that the child had a very good relationship with the father and that relationship should be recognised.
The father’s case is that the child is not unhappy with him, but rather it seems, on her statement to Dr H, that the child is concerned for her mother.
It is put to me with some force that time with the father is of more importance than time involved in an activity that the child is enrolled in and participates in on a weekly basis in New South Wales. Particularly, there is the child’s swimming which occurs after school on Friday, and a gymnasium session which occurs from 11 to 1 on Saturday. As I say, the father asserts that it is more important, that on the occasions he is in Sydney, the child spends uninterrupted time with him rather than being involved in those activities.

The Mother’s Case

The mother’s case is that she, better than anybody else, knows the child’s needs and can recognise and meet those needs better than anybody else. She says that the child has a routine in relation to her activities which is important to her. She said that the father decided after moving that three weekly was the time he would spend with the child, and she accepted that decision. She also relies on Dr H’s report, relying on the passage where the child indicated she began to miss her mother and pets when she was with her father for a long time. She also makes mention of unhappiness at a changeover where the child was not allowed to bid goodbye to her mother. It has been put to me by Mr Greenaway – and on the face of it, I accept – that was one occasion and has not been repeated.
The mother agrees that the father’s part in the child’s life is of significance and that he should spend time with her. However, the mother’s position is that the time should be less than the father asserts, both as to the short holiday periods and as to the longer holiday periods. She asserts that the longer holiday period, that is, the December/January in each year, should be broken so that there are in fact two periods within the long holiday. That is, I acknowledge a correction by Mr Greenaway, which was entirely appropriate, as opposed to the father’s four weeks in a straight block during that period.
I am informed and accept that the mother is in full-time employment, which of course must have some impact upon the time, and the quality of time, that she can spend with the child.
To my mind, those are the matters that have been agitated before me, and I must now look to the law to be applied.

The Law to be Applied

There is no doubt that the orders that are sought before me are final parenting orders. To my mind, it is clear that there are certain sections of the Act to which I must have regard.
The first of those sections is s.60B which sets out, firstly, the objects of the Act and then the principles underlying those objects.
The objects may be briefly stated as:
a)The right of children to have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests; and
b)Protecting children from physical or psychological harm, ensuring children receive adequate care and proper parenting.
The principles, briefly, are:
a)That children have the right to know and be cared for by both parents; and
b)That the children have a right to spend time on a regular basis with, and communicate on a regular basis with, both parents.
The next of the sections to which I am taken is section 60CA, which tells me simply that I must regard the child’s welfare as the paramount consideration. The next of the matters to which I must have regard is section 60CC which sets out both primary considerations in determining what is in a child’s best interests, and additional considerations. The primary considerations bear a strong resemblance to the section 60B objects; the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from abuse or harm. That, of course, is a balancing exercise. However, in this case there is absolutely nothing before me to indicate that there is any suggestion that in either household there is any need for protection in respect of any risk or exposure to abuse.
The additional considerations are, first, any views expressed by the child.
In this case, the material in that regard is that which I have taken from Dr H’s report. Clearly, each of the parties can take something away from that report to support their position. I am satisfied that the child has indicated to Dr H that clearly she wants to see a good deal of her father, but the exact amount of time, to my mind, is not determined by her statement eight days on and then eight days off. The child is saying, as I have already indicated, she would wish to see a good deal of her father. She has also indicated, and I accept, that she began to miss her mother and pets when she was with her father for a long time. ‘Long time’ is not defined.
Accordingly, there is nothing in the child’s views that I can consider, even having regard to her young age, that would be determinative in reaching a decision in this matter.
The nature of the relationship of the child with each parent is significant. I am satisfied that the child has an appropriate and proper relationship with each of her parents. However what must be recognised is that the nature of that relationship is very different.
The mother is the person who is responsible for attending to very much of the day to day needs of the child. It is she that is responsible for seeing her off to school, seeing her when she returns from school, engaging with her in the activities that arise from that situation, and outside her school.
Whilst in no way intending to minimise the father’s part or be in any way derogatory of his relationship with his daughter, his relationship with her is of an entirely different kind. It would seem to me that his relationship is one of a much more relaxed and unstructured situation.
The child clearly spends the bulk of her time with her mother and that is clearly with the agreement of both parties. As I say I am in no way criticising the relationship with the father but it is a different and in my view, less extensive relationship than that of mother and child.
I am then taken to the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent. Mr Greenaway puts to me that I should consider that the parties are effectively equal under this score. Clearly, it is the father that has had to do the travelling to facilitate such time as he has with his daughter. He clearly has been able to communicate with the mother to a limited but nonetheless effective degree as to what those times should be. However, it seems to me that he has now reached the point where he says that his view should prevail and the times that he seeks with his daughter should be allowed him.
Whilst I congratulate the parties for the extent to which they have been able to reach agreement, it seems to me that it is a shame that on the outstanding matters the parties have not been able to reach a compromise satisfactory to them for their daughter.
The likely effect of any changes in the child’s circumstances in this case is limited. It would mean that, should the father obtain the orders that he seeks, the child would spend more time than previously with the father and in block periods greater than has been in the past.
The effect of the separation from her mother in my view is something that could present a real difficulty. I am satisfied and have given full weight to the submissions that Mr Greenaway has made to the effect that the child has talked about eight days with each. However, I am equally satisfied that the child does become distressed after being away from her mother and her pets for a long time and that is not something that I can ignore.
The practical difficulty and expense of a child spending time and communicating with a parent is something that in my view is to the credit of the father. He has arranged for himself to come to Sydney for weekends, and for the child to travel with him to Townsville for school holidays. He has done so at his own expense. Further, he has not made any claim for departure from an administrative assessment of child support to which he may well have been entitled pursuant to the provisions of the Child Support (Assessment) Act 1989.
The capacity of the parents, I couple that with the attitude to the child and the responsibilities of parenthood. Considering the positions these parties are in, in my view they have both demonstrated a real capacity to provide for the needs of the child including, as the statute says, emotional and intellectual needs. Again however, I stress that the relationship of the child creates a different need in each of the parents to establish their capacity to deal with the child.
I am satisfied that both parents love this child to death and each believe that they have at the forefront of their minds the responsibilities that they must discharge in the best interests of their daughter.
To my mind these are the matters to which I need pay attention in dealing with those additional considerations.
The next matter that I must turn to is to determine under section 60CC(4) whether the parents have for themselves taken the opportunity to participate in making decisions about issues concerning their child and the extent to which each has facilitated the other in so doing. Both parties in my view come out well under this section. They have both endeavoured to involve themselves to the maximum extent possible and both of them appear to have endeavoured to ensure that the other parent is participating in decisions involving the child. However, in my view, whilst both fare well under this section it slightly favours the wife.
There is no need for me to be concerned with family violence.
I then come to section 61DA(1). This is the section that makes it clear that I must proceed on the presumption that there is to be equal shared parental responsibility. Of course sometimes that can be a matter for major argument between parties. In this case that is not so simply because the parties have agreed that it should be so and I intend to make an order for equal shared parental responsibility.
It does, at one level, no more than continue the existing orders that were made whereby in the terminology of those days the parties were responsible for the long term care and responsibility of their daughter.
Having made or being about to make an order for equal shared parental responsibility the next of the subsections that I am concerned with is section 65DAA which provides that where a parenting order is to provide for equal shared parental responsibility, the Court must consider either equal time or, under subsection (2), significant and substantial time. In this case equal time is not sought nor in the circumstances of the case could it be. I propose to say nothing further on that.

Discussions and Conclusions

So far as significant and substantial time is concerned that is, of course, not something that is capable of being generally defined. There have been a number of attempts to do so and to my mind the major thing that must be born in mind is that it must be significant and substantial within the factual basis of the case being determined. In other words that which might be seen to be significant and substantial in one case could be demonstrated to be far less than that in another case.
In this case the father’s time with the child is largely governed and effected by the distance between the parties’ households. The time that he can spend with the child on weekends (each third weekend) is the best that can be arranged in all the circumstances. That is not in dispute. The amount of time that he spends with the child during school holidays is one of the real issues in dispute in this matter.
Of course, significant and substantial time must be practically possible. In the past, having regard to the prior orders and the arrangements between the parties, it is clear that the husband has come to Sydney to spend time with his daughter. The father proposes to continue to do this, and to have the child go with him to his home for time available during the school holidays. That which has occurred in the past has demonstrated that what is proposed for the future is practical and workable.
The section also deals with the times falling on holidays, non-holidays, school days and non-school days. Doing the best that can be done in the circumstances of this matter, the position is that the time the child is to spend with the father must be mainly weekend time during school term and additional time during school holiday periods.
So far as the weekends are concerned I propose to order that the father see his child from after school on Friday until 5 pm on Sunday. It seems to me that that certainly is something that is fairly close to being agreed by each of the parties.
The father is to pick the child up from school. To my mind that gives him some opportunity to be involved on a regular basis with those in authority at the child’s school. In other words, that enables him on those afternoons of pick-up to make arrangements as best he can, whilst at the school, to engage the teachers, and others in authority, about matters concerning his child.
I do propose to make an order in accordance with the document handed to me on behalf of the mother that within seven days the mother shall make all arrangements necessary to enable the father to communicate with the school and seek the supply of any information and copies of documents as he sees fit.
The issue of the activities of the child are the subject of further considerable dispute in this matter. The father says the time he has with the child, being limited as it is, should be such that his time has priority over other activities, and should not be interrupted by other activities. The mother for her part says that the child enjoys them, that the child wishes and has expressed a wish that her father participate to some extent in taking her to gym. The mother asserts that these activities instil discipline and commitment in the child, and should not be easily put to one side.
There is merit in each argument. I have come to the conclusion that the fact is that the father’s time, notwithstanding it is the best that can be arranged, is less than might be the case were the father not living so far from the mother’s household. In these circumstances, I am satisfied that his time with the child should have some, but not absolute, priority. By that I mean the child’s other activities to which I have referred must, to some extent, give way. I propose to order that the father will ensure the child attends swimming lessons after school on each alternate occasion that he has the child with him.
I do not propose to make any orders in relation to the child’s attendance at gym. That to me seems to be an entirely different situation, having regard to the fact of distances the father must travel, even after he has arrived in Sydney, so as to spend the weekend with his daughter. By that I mean driving to the Newcastle region; to the home of his parents. To attend gym would require a return trip to the Sydney metropolitan area on Saturday or remaining in the Sydney metropolitan area overnight on Friday.
However, and having said that I will not make an order, I would encourage the father to do the best he can so that on some occasions, when he has his daughter with him, he takes her to gym. This is something she has clearly expressed a wish that he might observe her at, and which, in any event, I would have thought, a parent would be anxious to see and gauge for himself the activity in which his daughter was taking part, and in respect of which she was clearly keen to be involved and to involve her father.
So far as the short holidays between terms one and two, two and three, three and four are concerned, I consider that it is appropriate that the father collect the child at 5pm on the last day of school. This will enable the child to have clothing, and other items that she may wish to take with her, available and to hand. Those periods will conclude at 5pm on the Sunday nearest the midpoint of each holiday period.
The first of those periods will be between first and second term 2010.
Turning then to the long school holiday periods, I understand the father wishes to have his daughter with him for a single unbroken period of time. Having heard the evidence that I have, I have formed the view that a single block would not be appropriate at this stage and indeed for some time to come. Whilst acknowledging that a split period will involve extra transportation, and clearly extra cost, what I propose to order is that during the December / January holiday period commencing 2009 / 2010 and each alternate year thereafter there be two periods of time being a) from 10am on 27 December to 5pm on 6 January; and b) from 10am on 17 January to 5 pm on 26 January.
For the holiday period 2010 / 2011 and each alternate year thereafter, the father shall spend time with the child from 10am on 23 December to 5pm on 2 January and b) from 10am on 11 January to 5pm on 17 January.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier

Associate:

Date: 29 January 2010