Close and Close

[2010] FamCA 1022

FAMILY COURT OF AUSTRALIA

CLOSE & CLOSE [2010] FamCA 1022

FAMILY LAW – CHILDREN – interim – With whom a child lives – With whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT: Mr Close

RESPONDENT: Ms Close

FILE NUMBER: SYC 485 of 2010

DATE DELIVERED: 17 November 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 15 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Nash

SOLICITOR FOR THE APPLICANT: Djekovic Hearne & Walker

COUNSEL FOR THE RESPONDENT: Ms Rees, senior counsel

SOLICITOR FOR THE RESPONDENT: Craddock Murray Neumann

Orders

1. Pending further order, the orders dated 26 March 2010 be varied by:

   1.1.Deleting order 2 and inserting, “That [C] live with each of his parents as follows:

   2.1 Subject to order 2.3, in week one of each fortnight the father shall collect [C] from [C’s] preschool at the conclusion of preschool on Friday afternoon or from the mother’s residence at 5pm on Friday (in the event it is a week when [C] is not attending preschool) and shall return [C] to his preschool on the following Friday morning or to the mother at 5pm that Friday (when the mother attends to collect [C]) in the event that [C] is not attending preschool on that Friday. 

   2.2Subject to order 2.3, in week two each fortnight the mother shall collect [C] from [C’s] preschool at the conclusion of preschool on Friday afternoon or from the father’s residence at 5pm on Friday (in the event it is a week when [C] is not attending preschool) and shall return [C] to his preschool on the following Friday morning or to the father at 5pm that Friday (when the father attends to collect [C]) in the event that [C] is not attending preschool on that Friday.

   2.3By consent, [C] spend time with his father from Monday 3 January 2011 to Sunday 9 January 2011 and from Monday 17 January 2011 to Sunday 23 January 2011.

   2.4[C’s] time with his parents referred to in paragraph 2.1 commence in the first week in December 2010 when [C] would ordinarily be with his father for four nights and five days.”

   1.2.Order 3 made on 26 March 2010 be discharged and C spend one half of school holiday time in each year with each of his parents. 

   1.3.Orders 10 an 11 made on 26 March 2010 be discharged and the following orders be made:

   10.1The father be restrained from causing or permitting C to mount or ride a horse or motor cycle unless the father or some sober adult authorised by the father, closely supervises C during that activity;

   10.2 The father or some sober adult authorised by the father, closely supervise C if he is in the vicinity of horses, horse stables or other yards or enclosures where horses are kept; and

   10.3 The father be restrained from taking C outside the Sydney metropolitan area unless the father complies with the following condition:

   10.3.1He not consume alcohol in excess that which would disentitle him from legally driving a motor vehicle on a public road in New South Wales (and “sober” in 10.1 and 10.2 has the same meaning), from 12 hours prior to taking C outside the Sydney metropolitan area until he returns to the father’s home in Sydney.  

2. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders. 

NOTATION:

1. I note the parties have reached agreement in relation to the time C will spend with each of them over the Christmas 2010 period. 

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 485 of 2010

MR CLOSE

Applicant

And

MS CLOSE

Respondent

REASONS FOR JUDGMENT

1. In this matter the father seeks interim orders that C, born in October 2006, aged 4 years, live week about with each parent.  The father seeks that this should occur either in seven straight days or in some other combination.

2. The father specifically asks that orders 10 and 11 of 26 March 2010 be discharged.  Those orders provide that the father not cause or permit C to mount or ride a horse or a motorcycle or bring the child into the vicinity of horse stables or other yards or enclosures where horses are kept and that otherwise the child be restrained from being taken outside of the Sydney metropolitan area.  The effect of those orders is that the father is unable to take the child to his farm.  The father is primarily involved in managing a number of businesses but he also has interests involving farming and horse breeding.

3. Currently pursuant to the consent orders dated 26 March 2010, the child spends time with the father in a fortnightly cycle from 7am Monday to 6pm Tuesday and from 7am Friday to 6pm Tuesday.  That is, C spends time with his father for five nights and during seven days each fortnight.

4. The mother in her Application in a Case filed 8 November 2010 seeks to reduce the father’s time with the child from after school Friday to before school Monday in week one and from after school Thursday to before school Friday in week two.  That would be an arrangement whereby the child spent four nights and six days with his father in each fortnight.

5. The father is aged 44.  The mother is aged 38.  They married in February 2006.  C was born almost exactly nine months after the date of the marriage. 

6. The parties separated in August 2008.  At that time the father moved to a flat and the mother and child remained in the matrimonial home. 

7. At the time of C’s birth and up until the date of separation, both parties worked.  Since the child was very young he attended day care. 

8. The father has had an active involvement in the child’s life. There have been periods since the separation when the mother has gone away and the father has looked after the child.  The mother travelled to Hong Kong for five days in November 2008 and the father cared for C during that period.  The father cared for C in March 2009 when the mother travelled to Melbourne to open a new shop. 

9. From about July 2009 there were difficulties in the parties agreeing on the amount of time the child could be with the father, leading to the father filing an Application on 28 January 2010 seeking interim orders to define the amount of time that C should spend with each parent. 

10. As I have said, on 26 March 2010, by consent, interim parenting orders were put in place.  Order 12 of those orders provided that the interim parenting proceedings be adjourned for a period of three months to permit the parties to trial the arrangements and to attend further mediation and hold further discussions prior to deciding on what final parenting orders should be made.  The parties have not been able to reach an agreement on further orders. 

11. The father relies on affidavits filed on 28 January 2010 and 15 November 2010. 

12. The mother relies upon an affidavit filed on 8 November 2010. 

13. Both parties also rely upon and referred to a report dated 19 August 2010 that was prepared by a family consultant who saw the parties and the child. 

14. Both parties present conflicting facts in their sworn evidence and, as is common in many interim matters, it is a matter of attempting to find the small amount of helpful evidence that will assist in determining what might constitute arrangements that are in the child’s best interests.

15. The mother announced at the commencement of the hearing that the parties had agreed that the child would spend a week with his father commencing 3 January 2011 and another week with his father commencing 17 January 2011. 

16. Both parties have agreed on C’s schooling next year and he will commence preschool in 2011 prior to commencing kindergarten in 2012. 

17. The main issue in dispute between the parties in the context of this interim hearing relates to what time the child ought to spend with each parent.  That in practicable terms is a dispute as to whether or not the current interim arrangement is increased by allowing C to be with his father an additional two nights a fortnight or whether or not on the mother’s proposal, the current arrangement is wound back. 

18. The second issue is whether or not the father ought to be permitted to take the child to farming and/or other properties on which there are horses and other risks which the mother perceives as being dangerous and whether or not the child ought to be permitted to ride horses or trial bikes. 

19. In considering matters in s 60CC of the Family Law Act (FLA) that are relevant, I have regard to the evidence of the family consultant.  The family consultant saw the parties on 30 July.  At that time the arrangements that had been put in place as a result of the consent orders of 26 March, had been in place for a period of four months.  The father expressed the belief to the family consultant that the child was generally settled in those new parenting arrangements. The mother however said that she believed there were too many changeovers and that C was not coping with being away from her for three consecutive nights.

20. The family report writer concluded that each parent presented as someone who enjoyed a close and loving relationship with the child and the family consultant reported that neither party had any concerns about the other’s general parenting capacity. 

21. Importantly, when the mother was talking to the family consultant, she did not express any concern in relation to the father’s behaviour towards her or to the child other than those associated with his drinking and consequential perceived lack of focus on C’s safety.

22. The more specific allegation made by the mother against the father in relation to his drinking was that he drank on a daily basis and drank to excess approximately once a week. 

23. The family consultant reported that there are no issues of family violence between the parties and there are none that are overtly raised by either party in their affidavit evidence. 

24. The father has expressed the view that the mother often refuses to communicate with him (and has said to him in the past that she intends to move interstate). 

25. The mother also agreed that there were communication difficulties, although she said it was the father who she described as “shutting off” whereas she sought to “talk things through”.

26. The family consultant opines that the mother continues to struggle to come to terms with the parental separation, the mother believing up until earlier this year that reconciliation was possible.  The family consultant was clearly of the view that the mother was still very much working through the emotions of the separation and was thus experiencing significant difficulty in addressing parenting issues.  The family consultant pointed out that it is problematic for the parents to negotiate with one another at this time when each is at a different stage in the separation process.

27. The mother reported concerns about the child’s behaviour on his return from his father. The family consultant opined that these concerns were normal, particularly in the context of the child allegedly repeatedly saying that he wanted to live with his father. 

28. The main report of something that might exhibit a behavioural problem in the child is reported by the mother to have happened in April 2010 (see paragraph 61 of the mother’s affidavit).  The father’s evidence about the alleged behaviour is that he had conversations with C’s carers and that the child was very much better behaved a week or so later. 

29. The mother’s evidence about her specific concerns in respect of how the child is currently coping with the current arrangements are contained in paragraphs 58 and following of her affidavit filed 8 November 2010 and I was particularly referred to paragraphs 61, 62, 63 and 71 as some evidence that the child’s behaviour might indicate that current arrangements are not working for him. 

30. In paragraph 71 the mother reports C being disruptive and disobedient initially upon his return from his father and C’s behaviour taking some time to level out.  There is however nothing in the wife’s affidavit which gives me any particular reason to believe that the child is finding the transition between his two parents difficult.

31. A number of matters do not seem to be consistent with the mother’s statement to the family consultant that C does not cope with being away from her three consecutive nights.  They are:

    31.1.The agreement between the parties that the child be with his father for two separate weeks during January 2011;

    31.2.The seemingly agreed fact that in November 2008 the child stayed with his father for five days when his mother went to Hong Kong;

    31.3.That C stayed with his father in March 2009 when the mother went to Melbourne to open a new shop; and

    31.4.The fact that since March 2010 an arrangement has been in place where the child has spent significantly more time away from his mother than three nights without any obvious adverse affect.

32. Although C has said to his mother that he wants to spend time living with his father, no view expressed by the child at his age has any weight in the context of this application. 

33. I note that on 26 March 2010 an interim order for equal shared parental responsibility was made and neither party sought to interfere with that order.

34. Consequently in the context of this application, the provisions of s 65DAA FLA apply and I must consider whether or not the child spending equal time with each of the parents would be in his best interests and otherwise reasonably practicable and if it is, consider making an order to that effect (s 65DAA(1) FLA). 

35. In terms of whether or not equal time is reasonably practicable, I have regard to the matters set out in s 65DAA(5) FLA.  The parties live sufficiently close to make the arrangement work.  I have no real concern about either parent’s current and future capacity to implement any arrangement for equal time.

36. The mother’s evidence in relation to communication difficulties is mainly contained at paragraphs 85 and 88 of her affidavit.  There is some evidence given by the wife that the child may have the impression that he should not speak openly to his mother about what happens in his father’s household.  The mother has asserted that C indicated that the father had said to the child “mummy tells lies” (the father does not dispute that when replying to the relevant paragraph in the mother’s affidavit).

37. Although there is a concern about the parents’ current capacity to communicate, the problems in that regard seem, at least in the family consultant’s view, to currently arise out of the different stages that the parties are at in the separation process, rather than any inherent difficulty in the two parties communicating with one another. 

38. Moving to an equal time arrangement might be expected to have little impact upon the child given that what is being proposed is that he stay with his father for two extra nights a fortnight (he is already seeing his father seven days a fortnight). 

39. I conclude, pending further order, that it is in C’s best interest to spend equal time with both his parents and that it is otherwise reasonably practicable.  I accept Counsel for the father’s submission that now is a convenient point in time, given that C is going to commence preschool on a full time basis next year, to introduce an alternate week-about arrangement, on an interim basis. 

40. The father said to the family consultant that he was at a loss to understand the reasons for the mother not supporting the child travelling with him to spend time with members of his extended family (who live on farms) or to friends’ homes outside of Sydney.  The father believes that the mother has unrealistic fears about C’s safety on farms.

41. The family consultant indicated that the mother experienced the idea of the father taking the child to farms and/or properties where there are horses or other farm animals as anxiety provoking.  She expressed the view to the family consultant that she did not believe that the father was sufficiently aware of the potential dangers such situations might place a young child in.  She also asserted that the father and other members of the paternal family drank to excess when the father was visiting them and thus they would not be sufficiently aware of the needs of a young child. 

42. The mother in her affidavit sets out the evidence upon which she seeks to rely in support of the continuation of the injunctive orders restraining the father from taking the child to the country.  The mother at paragraphs 13 and 14 of her affidavit gives evidence that on several occasions the father had drunk heavily whilst the child was a baby and on one occasion, C had rolled off a change table in circumstances where the mother alleged the father had been drinking heavily.  The father in his affidavit in reply does not seem to put those incidents in issue. 

43. The mother at paragraph 31 deposes to the father’s lack of vigilance in February 2009.  This incident does not seem to be linked to any consumption of alcohol by the father.  The father in response denies that the incident occurred as the wife alleged.  On the father’s version, it was the mother’s fault that the child was able to run out the front door.  I am unable to make any conclusion about the mother’s allegation of the father’s lack of vigilance based on the untested evidence before me.

44. At paragraph 47 of her affidavit, the mother complains that in September 2009, whilst the child was with his father, he had been able to get hold of three cigarette lighters which the mother found in C’s pockets on his return.  There is also an assertion that at this time the child obtained access to the father’s pocket knife. 

45. It seems that on the weekend following this incident, both parties travelled to the farm together and the mother alleges that “he later put [C] on a quad bike at night, without lights”. The father in reply has annexed a number of photographs, which include a photograph of the mother with the child on a large quad bike (the child seems to have a helmet on at the time) and the mother towards the end of 2009, assisting the child on a smaller quad bike with C having a helmet on. 

46. At paragraph 48 the mother says in October 2009 the parties had gone to V together (the father’s property).  The mother said the child rode a mini bike and ran into a yard where there was a cranky small horse.  The mother had to chase after C and bring him back.  I am not entirely certain how this incident demonstrates lack of supervision by the father given that it was the mother who apparently had the child in her care at that time. 

47. The mother at paragraphs 52 through to 54 of her affidavit makes complaints about C being provided with a quad bike as an inappropriate present in Christmas 2009 and the child being inappropriate exposed to rum that had been left out overnight; cigarettes in a bathtub and being unrestrained in the open tray of a land cruiser (it is not alleged on a public road).  The mother’s point was that in December 2009 the child had only just turned 3 and she considered it unsafe and inappropriate.

48. The family consultant concluded that the mother’s attitude in relation to the child being taken to the country was not a deliberate attempt to undermine the child’s relationship with the father.  The family consultant’s opinion was that the apprehension that the mother reported was real and genuine.  That of course was not to say that it is reasonably held.

49. In response to the mother’s assertion in respect of the father’s use of alcohol, Counsel for the father points out that the father is the licensee of a number of businesses.  There is no evidence he has ever had any difficulty with that license based on his inappropriate use of alcohol.  There is also no evidence the father has been convicted of any offence associated with alcohol.

1. On the evidence I conclude:

   50.1.The mother has a genuine apprehension that C may be at risk if he goes to the farm and his father does not supervise him properly;

   50.2.Without making any finding about the father’s current alcohol consumption, I accept the chances of the father not properly supervising the child increase if he consumes alcohol, particularly if that alcohol is consumed to excess;

   50.3.Even on the mother’s evidence, there is no indication whatsoever that C has actually been injured or even imminently in danger of being injured as a result of anything that has happened at a farm or on a country property; and

   50.4.The reasonableness of the mother’s genuine fears are yet to be fully tested but cannot be said to be reasonable on the evidence so far.

2. The father obviously has a keen interest as a farmer and a horse breeder.  The father is a responsible parent and I have no doubt he has the child’s safety and wellbeing very much at the forefront of his mind.  There is no evidence that C has been in any direct danger of being seriously hurt in his father’s care.

3. In order to reach a position, in the context of this interim application, where the mother’s genuine fears may be somewhat allayed, I intend to allow the child to be taken to rural properties by the father in circumstances where the father is bound by an order not to consume any alcohol beyond the limit where he would be unable to legally drive a motor vehicle, during periods of time around when he is at a rural property with the child.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 17 November 2010.

Associate: 

Date:  17.11.2010