Cls and Pat - [2005] FMCAfam 160

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CLS & PAT

[2005] FMCAfam 160

FAMILY LAW – Children – residence and contact – where parties agree that matter finalised without oral hearing pursuant to Part 15.03 FMCR 2001 – where father proposes shared residence – young child – where prior routine is a routine in the sense that the same disruptive arrangements were replicated weekly – parties unable to communicate – mother primary carer – father’s application refused – parties ordered to attend counselling to improve communication.

Family Law Act 1975, ss.60, 62, 65, 68

B and B: Family Law Reform Act (1997) FLC 92-755

Applicant:

C L S

Respondent:

P A T

File Number:

SYM56 of 2005

Judgment of:

Ryan FM

Hearing date:

17 February 2005

Date of Last Submission:

24 March 2005

Delivered at:

Parramatta

Delivered on:

13 April 2005

REPRESENTATION

Solicitor Advocate for the Applicant:

Mr A. Daly

Solicitors for the Applicant:

Daly Lawyers

Solicitor Advocate for the Respondent:

Mr P. Chodat

Solicitors for the Respondent:

Kells The Lawyers

ORDERS

All prior parenting orders are discharged.
The child born in 2002 resides with the mother.
The father and the mother have joint responsibility for making decisions about the long term care, welfare and development of the child.
The father and the mother have sole responsibility for making decisions as to the day to day care, welfare and development of the child whilst she is in their care.
The father have contact with the child as follows:
(a)From after day care/school Thursday until 5 pm Saturday each weekend commencing forthwith.
(b)Upon the child commencing school then for one half of each gazetted New South Wales school holidays as agreed between the parties AND failing agreement being the first half in years ending in an even number which shall include years ending in a zero and the second half in years ending in an odd number.
(c)In the years when the child is in the mother’s care for the first half of the Christmas Holidays from 3 pm Christmas Day until 5pm Boxing Day.
(d)On the child’s birthdays as follows:
(i)If the birthday falls on a school day, from after school the evening prior to her birthday until the start of school the day of the birthday in years ending in an even number. In years ending in an odd number from after school on her birthday until the start of school the next day.
(ii)If the birthday falls on a non-contact weekend for four hours from 9 am to 1 pm.
(e)On the Father’s Day weekend contact is extended so that it concludes at 5 pm that Sunday.
(f)At such other times as agreed between the parties.
Upon order (5)(b) becoming operative weekend contact is suspended during school holidays.
Unless otherwise defined in these orders school holiday contact shall:
(a)Commence at 10 am;
(b)Conclude at 5 pm;
(c)Be calculated from the day after the last day of school until and including the day immediately before school resumes;
(d)Pupil free days are deemed to be part of school holidays.
After a period of school holiday contact, contact shall resume on the first weekend after school has resumed if the father has exercised contact during the first half of the holidays AND on the second weekend after school has resumed if the father has exercised contact during the second half of the holidays.
If a contact period occurs on a day adjacent to a public holiday, it shall be extended to include the public holiday. If the public holiday is a Friday it shall start at the usual time on the Thursday. If the public holiday is a Monday it shall conclude at the usual time on the Monday.
For the purpose of contact changeover, the father or his agent shall collect the child from day care or school whichever is applicable at the commencement of contact and the mother or her agent shall collect the child from the father at the end of contact.
In the years when the child is in the father’s care for the first half of the Christmas Holidays contact is suspended from 3 pm Christmas Day until 5pm Boxing Day.
Each of the parties be entitled to obtain directly from any school attended by the child or from any health or welfare professional or other professional attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child and for this purpose each of the parties shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
Each of the parties do all such acts and things necessary to comply with any treatment prescribed or recommendations made by a health practitioner for assessment or treatment of the said child including any need for hospitalisation.
Each party keeps each other informed of all medical, dental and other health related treatment being undertaken by the child.
The parties shall agree on a family general medical practitioner who will be the child’s primary treating doctor. To the extent possible the parties shall ensure that the child attends their agreed treating doctor accompanied by one of the parties, except in the case of an emergency.
Neither party shall enrol the child in a continuing activity that requires the child to attend that activity during periods when the child is in the other party’s care unless both parents agree that the child should participate in it.
Both parties shall keep the other advised of contact telephone numbers. These telephone numbers are to be used for telephone contact or otherwise in relation to matters concerning the child only.
Pursuant to s.62F2 the parties attend a post separation parenting program to facilitate improved communication between them. The parenting program will be that arranged for them by the Director of PDR Services of the Federal Magistrates Court. In the event that the program coordinator requests that the children participate in the program or another associated program the parties shall ensure that the children all appointments made for them.
Pursuant to s.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 exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
The solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.
The operation of orders (5)(b)-(e) to (16) inclusive are suspended for six (6) weeks from today.
Both parties have liberty to apply to vary or set aside orders (5)(b) – (e) to (16) without showing a change in circumstances upon seven (7) days notice.
Subject to any costs application, all outstanding applications are dismissed.
Any costs application shall be made within fourteen (14) days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
WOLLONGONG

SYM56 of 2005

C L S

Applicant

And

P A T

Respondent

REASONS FOR JUDGMENT

Introduction

This is a parenting application involving competing residence proposals about the parties’ only child, N T, hereafter “the child”. The child was born in 2002 and has recently turned 3 years old. On 4 March 2004 interim orders were made at Wollongong Local Court, which essentially provide that the child lives with her father from 5 pm Thursday until 5 pm Saturday and with her mother the rest of the week.
The applicant mother proposes that these interim arrangements continue long term. The respondent father disagrees with the mother’s approach and seeks a shared care arrangement whereby the child will reside with him from 3 pm Wednesday until 5 pm Saturday each week and with the mother at all other times.
This matter was listed for final hearing on 17 February 2005 for two hours. The matter was listed on the basis that the parties agreed that there were few contentious issues and the hearing would proceed purely on submissions. When the matter was called on, an earlier hearing was continuing and I was unable to start this hearing on 17 February 2005. The parties took the opportunity to again explore resolution of the matter, unfortunately without success. I invited the parties’ solicitors to consider whether pursuant to Part 15.03 of the Federal Magistrate Court Rules 2001 they consented to the matter being determined without holding an oral hearing. The parties agreed that their competing applications would be determined without an oral hearing. Thus, the evidence has comprised the affidavit material. Submissions were received from the mother’s solicitors on 3 March 2005 and answered by the father’s solicitors on 16 March 2005. The mother filed submissions in reply on 24 March 2005.

Chronology of relevant events

C L S (“the applicant mother”) was born in 1980.
P A T (“the respondent father” was born in 1981.
The parties commenced their relationship in about April 2000. Approximately twelve months after their relationship commenced, the mother fell pregnant. At that time she was still residing with her parents home, just south of Wollongong. The father was living in a rented unit at Wollongong where he lived with his brother. Upon discovering the pregnancy, the parties decided to marry and the father returned to his parents’ home north of Wollongong so that he could start saving in earnest.
About six months after the mother fell pregnant, the parties became engaged.
In late 2001, the parties purchased a two-bedroom home at Wollongong, “the Wollongong home”. Settlement took place shortley before the child’s birth.
The mother had a difficult pregnancy and underwent a number of operations prior to the child’s birth. The child was born by cesearian section in 2002. The mother and the child remained in hospital for about two weeks following the child’s birth, during which time the mother underwent further surgery. Upon their discharge from hospital the parties and child moved into the Wollongong home.
The mother stopped paid employment prior to the child’s birth. From the commencement of their relationship the father worked full time and was working in excess of forty hours per week immediately following the child’s birth. Initially, the parties essentially divided their roles so that the father took primary responsibility for providing financially for the family and the mother accepted responsibility for the child’s care and the home.
When the child was approximately four months of age the mother returned to her former employment, working at a fast food outlet in Wollongong. She worked a maximum of two days per week. On those days when the mother worked during the week, the father’s mother cared for the child. When she worked on weekends the mother’s mother cared for the child.
In October 2002 the mother obtained a voluntary position at a wildlife park. The mother has always aspired to work with animals and accepted this position in the hope that it may lead to paid employment. Initially, she worked, unpaid on Saturdays from 7.30 am until 4.30 pm. On those days, her mother usually cared for the child.
In approximately December 2002, the mother obtained paid employment the wildlife park on a part time basis. She initally worked six to seven days per week, filling in for other staff members. By the time the mother commenced paid employment at the wildlife park, the father was no longer in full time employment and was working as a contractor. The parties agreed that when he was available the father would care for the child whilst the mother was at work. From approximately December 2002 until February 2003 the mother worked five, on occasions six days, per week. She always worked Tuesday, Wednesday, Thursday, Friday and Saturday as well as an occasional additional day. During this period the father returned to work and his mother primarily cared for the child whilst the mother was at work. On some occasions, presumably most often on weekends, the father cared for the child.
The parties separated in February 2003 when the mother returned to live with her parents. She took the child with her. When the parties separated the mother was working four days per week, being Tuesdays, Wednesdays, Fridays and Saturday. The father was working full time. The parties reached an informal agreement concerning the child’s care. The mother says that the agreement was predicated upon trying to maximise the child’s time with both parents which meant that it was structured around their working commitments. The father disagrees and says that the parties reached an in principle agreement for an effective shared, equal parenting arrangement. They agree that the father had contact on Tuesdays and Wednesdays and from 5 pm Thursday until 5 pm Saturday. The father alleges that the Tuesday – Wednesday contact was overnight starting at about 9 am Tuesday and ending at 9 am Wednesday. The mother says the Tuesday contact was day only and that she collected the child at about 5.30 pm on Tuesdays with the father resuming contact on Wednesday mornings. In this instance I prefer the father’s evidence. The mother’s evidence is inconsistent with aspects on her evidence sworn in an earlier affidavit, whereas the father has always maintained his stance.
Because the father worked full time, he relied significantly on his mother to care for the child whilst he was at work. During contact with her father, the child either resided with her father at the Wollongong home or alternatively at his parents home, north of Wollongong. When the child stayed overnight at her paternal grandparents’ home, the father usually slept over as well.
During 2003 the child commenced daycare at the local day care two days each week. Initially, the child attended daycare Monday and Thursday. Thus, her essential arrangements were as follows:
·On Mondays the child lived with her mother and during the day attended daycare.
·On Tuesday morning the mother delivered the child to the father’s parents’ home at about 9 am. The father’s mother cared for the child during the day. On some occasions the father was able to finish work early and spend time with the child. The mother delivered the child to her maternal great grandmother at about 9 am Wednesdays and collected her at approximately 2 pm. The child remained in her mother’s care overnight and went to daycare on Thursday.
·On Thursday evenings the father collected the child from the mother’s home at about 5 pm. When he was able to, the father took Fridays off work, however, it appears that the father’s mother was primarily responsible for the child’s care during Fridays. The child remained with her father overnight Friday until the mother collected her from the father’s parents’ home at about 5 pm Saturday.
·The child remained with her mother from 5 pm Saturday until preschool Monday morning.
During 2003 the mother’s work roster changed so that she was no longer required to work on Tuesdays. The mother contacted the father and suggested that she would care for the child at all times other than from Thursday afternoon until Saturday afternoon. She explained to him that she considered this a more satisfactory arrangement examined from the child’s perspective as it provided greater stability and reduced the reliance the parties needed to place upon others for the child’s care. Structured as the mother proposed, she opined that the existing disruptive arrangements should end as a consequence of which the child would be more settled. The father rejected the mother’s proposal and disputed her claim that the contact arrangements were unsettling and disruptive. With respect to him, I do not accept his contention that the then arrangements for the child’s care were appropriate or that the child was showing no signs that she was not coping with the arrangements. Whilst there was a routine it was a routine in the sense only that the same disruptive arrangements were replicated weekly. The routine was disorganised and for a toddler fundamentally inconsistent with a young child’s need for stability. When the opportunity arose to introduce a more appropriate structure for the child’s care, the mother’s decision to pursue change was reasonable and child focussed. The father’s decision to resist this change whilst understandable in the sense of his not wanting to relinquish time he and his family enjoyed with the child was unfortunately more focussed on his needs than hers. Both parties retained lawyers and negotiations took place in an attempt to resolve this impasse.
Eventually, on Australia Day 2004 the mother contacted the father and told him that thereafter his contact would start at 5 pm Thursday and end at 5 pm Saturday. The father was outraged by the mother’s unilateral decision and refused to accept it. Having been denied contact earlier in the week, when the child came to him for the following weekend he kept her until 5 pm on Sunday. He claimed that this was the first of three days that he would keep the child to make up for lost time.
On 30 January 2004 the mother filed an urgent application for interim parenting orders in the Family Court of Australia. Her application was returnable 30 March 2004.
At about the same time the father filed an application at Wollongong Local Court for interim parenting orders. His application was returnable on 4 March 2004. The Wollongong Local Court ordered that the father have contact from 5 pm Thursday until 5 pm Saturday and that the child live with the mother at other times. Contact has occurred in accordance with these orders and the parties agree that the regime has worked well.

The mother’s circumstances

The mother resides with her parents and the child at her parents’ home just south of Wollongong. The home is a five bedroom brick home with a fully fenced backyard. The child has her own bedroom that is well set up for a child her age. The mother has arranged her work roster so as to maximise her time with the child. Presently, she works Thursday evenings from 6 pm until 1 am at a local restaurant, from 7 am until 5 pm at the local wildlife park on Fridays, then from 6 pm until 1 am Friday evening at the restaurant and at the wildlife park on Saturdays from 7 am until 5 pm. The child attends day care on Thursdays, primarily, it seems so that she can have contact with other children. On Wednesdays the child spends a few hours with her maternal grandparents. The mother’s grandparents are Spanish and she is keen that the child spends time with them so that she can develop an understanding of that aspect of her heritage.
The mother relies on her parents, primarily her mother’s assistance, with contact changeover. With her parents’ assistance, she believes she can avoid tense changeovers and the risk of arguments in front of the child during changeover. The mother plans that the child will attend the local primary school.
The mother has applied for the administrative assessment of child support. An administrative assessment has issued requiring that the father pays $311 per month child support. Apparently the father has applied to change the assessment. The father has not paid any child support since separation.

The father’s circumstances

The father resides in the Wollongong home. The home is a two bedroom free standing cottage in which the child has her own room. The room has been set up so that the child’s needs whilst in her father’s care are well met. The father’s parents assist him with the child’s care and they have established a room in their house that the child identifies as her own.
The father is a qualified electrician. Presently, he runs his own business and is usually able to take Friday’s off and care for the child. When he needs to work, his mother cares for the child.

The father does not challenge the mother’s assertion that the child should attend the local primary school and I infer that this arrangement is acceptable to him.
The father agrees with the mother’s assertions that the parties are unable to communicate with each other and says this has no ramifications for the shared equal parenting arrangement he proposes.

Relevant law

Residence, contact and specific issue orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act 1975. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to s65E in that in determining the outcome the best interests of the child are the paramount consideration. That is the overriding principle.
Section 60B is important as it provides the context within which the relevant s.68F (2) factors are to be examined and ultimately weighed. The importance of s.60B factors varies from case to case. Where there are no countervailing factors, the s.60B principles may be decisive.
Section 60B (2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development.
In deciding the residence and contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in s.68F(2). Its subsections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. B and B: Family Law Reform Act (1997) FLC 92-755.

Determining the child’s best interests

Both parents agree that the child is a happy child who enjoys a good relationship with both of her parents.
Both parents have worked hard to ensure that the child knows her extended family and she enjoys good relationships with her maternal grandparents and great-grandparents and her paternal grandparents. There is no criticism made in the parties’ affidavits about each others extended families or the role that the extended families have played in the child’s life. As young parents the parties sought the assistance of both sets of grandparents with the child’s care and since separation both sets of grandparents have been intimately involved in the child’s life. Because the child’s mother lives with her parents the maternal grandparents are an almost daily part of the child’s life. Her paternal grandparents are significantly involved in her life, but to a slightly lesser extent than the maternal grandparents. Fortunately, the net effect has been that the child has good relationships within her extended family. To the extent that either party needs to rely on family assistance in caring for the child, that assistance is readily available and offered by people with whom the child is close and comfortable.
Although the father may be unhappy with how it has come about, it appears plain that the child’s mother has been her primary carer. It is more likely than not that the child’s primary attachment is with her mother. Thus, from her mother the child is likely to derive her greatest sense of security and stability. The child’s relationship with her father is also fundamental to her sense of wellbeing. Although he may dispute it, I am satisfied that the mother has ensured that the child has regular contact with her father. The quality of the child’s relationship with her father has been achieved because of his devotion to it and also the mother’s commitment to regular and substantial contact. Whatever parenting arrangements are ordered, the mother is likely to continue to promote the child’s relationship with her father.
One of the pivotal issues in this case is structuring parenting arrangements that enable the child’s relationships with her parents to continue to develop whilst ensuring that her living arrangements are not unsettled. In the long term, unsettled and disorganised parenting arrangements are likely to undermine a child’s general adjustment and will probably disrupt their education. Secure and reliable living arrangements generally maximise a child’s chance of doing well at school, establishing and maintaining friends and managing complex familiar relationships.
When I stood back and considered the parties’ competing proposals, I was strongly satisfied that the mother’s proposals promote stability and security in a way that the father’s do not. In his written submissions, the father asserted in effect, that the difference is only one day each week. This is true, however, these arrangements are intended to continue long term and operate when the child starts preschool (if she does) and school. Structuring shared residence arrangements around mid-week changeover maximises the need for effective parental communication. This is because when they are young children need to rely on their parents to communicate matters concerning the child. For example, notices given by the school at the beginning of the week for events later in the week need to be passed on. Homework needs to be managed and projects, for example, that continue over a number of days or weeks need to be managed in both homes. Reading homework involves daily reading passages from the one book. Older children may be able to fill a void created by their parents’ inability to communicate and take reasonable responsibility for themselves. Younger children may try, but they rarely succeed. They do not have the maturity or life experience to necessarily discern the difference between important and insignificant matters. Important matters are just as likely to be overlooked as insignificant matters. With these parties inability to communicate, imposing an equal time parenting arrangement on the child exposes her to a high probability that she will increasingly become the centre of parental conflict as the parties recriminate with each other for failing to inform each other about significant matters concerning the child. Similarly, the risk is too high that the child will start to suffer because of her parents’ poor communication. Already there are signs that the child’s wellbeing has been compromised because of the parents’ poor communication. For example, suppositories given unnecessarily, an outcome that could have been avoided by a phone call made to the mother. Different approaches to diet have affected the child’s health. There is no evidence that the parties agree on bedtime, after school routines, approaches to homework and the like. Overall, I am far from satisfied that the parties will be able to manage the child’s care when she starts school with a mid week half way residence changeover. In the meantime I am far from satisfied that the child could cope with longer separations from her primary carer. The existing arrangements balance stability and the child’s need to enjoy proper and substantial relationships with all of her primary familial relationships. Further changes as the father contends may not only put her overall wellbeing at risk, but also undermine her key relationships. This is because she would potentially be too unsettled to feel settled in any one place or with either parent.
Although I have misgivings about their capacity to manage changeover on Thursday afternoons once the child starts school, both parties believe that this arrangement can work. Changeover on Thursday afternoons gives the father the opportunity to be involved in the child’s education balanced with the mother being substantially responsible for it. In the event that the parties’ approach to the child’s schooling differs the potential for disruption for the child is reduced because the time the child has with one parent during the week is lessened. An alternative approach for the parenting arrangements may have been to have the child with her mother during the week and on most weekends, all weekend with her father. However, neither party considers this approach reasonable or necessary. The advantages of such an approach are not so overwhelming that I feel it appropriate to refuse to make orders that provide for changeover on Thursday afternoons continuing contact until Saturday afternoon.

Conclusion

Long term, the orders the mother contends for should maximise the child’s relationship with her parents and significant others and maintain reasonable stability in the child’s life. Increasing the father’s contact so that there is a shared and equal parenting outcome, by contrast, is likely to place the child’s primary relationships under stress because I consider it likely that the child will be stressed. Whilst the father will be disappointed with this outcome I am satisfied that it is in the child’s best interests. So that it is plain, this is not an outcome driven by parenting capacity but by the child’s capacity to cope with the proposed arrangements against a background where her mother has been her primary carer.
The parties do not address in their respective application and response arrangements concerning special events such as Mother’s Day, Father’s Day, Christmas Day, and school holidays. As presently structured, the child will never enjoy Father’s Day with her father. I consider this undesirable as most children enjoy the chance to celebrate special occasions with both parents. Similarly most parents enjoy sharing special occasions with their children. Although they have not done so thus far, the parties will probably want to take the child on holidays. Mid week changeover every week will make this impossible. As the child grows older she will manage separations from each parent for longer periods and block periods of contact will become appropriate. Because the parties have poor communication skills, leaving these arrangements to chance agreement would be inconsistent with the court’s obligation to make orders that promote finality. I will make a series of parenting orders that provide a structure for school holiday arrangements, special days, and ancillary parenting orders.
The parties live reasonably close by to each other and when the child is old enough to participate in extra curricular activities they will need to agree on those activities and implement them. As far as possible the child should have consistent medical treatment and ideally medical care offered by the same general practitioner or medical centre. As the child lives primarily with her mother if the parties are unable to agree which practitioner, then the mother shall nominate the practitioner and centre. I will make provision for the father to receive notices and information from preschool and schools that the child attends. These additional orders will be stayed for six weeks from the date on which they are made. During that period the parties will have liberty to apply to vary or set the orders aside without showing a change in circumstances. If the matter is not re-listed during that period, then at the expiration of six weeks the orders will become final.
With fifteen years of shared parenting ahead of them, the parties current inability to communicate is concerning. So that they can achieve improved communication and a better understanding of the benefits to the child of cooperative parenting, the parties are ordered to attend counselling. The parties shall meet the costs of counselling equally and shall continue to attend for so long as the counsellor considers it beneficial.
For these reasons I make the orders identified at the start of this judgment. I am satisfied that the orders are in the child’s best interests.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate: S. Mashman

Date: 13 April 2005