Cole and Wilkes
[2009] FMCAfam 833
•30 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| COLE & WILKES | [2009] FMCAfam 833 |
| FAMILY LAW – Interim parenting – father seeking unsupervised time with young child. |
| Family Law Act 1975, ss.60B, 60CC |
| Applicant: | MR COLE |
| Respondent: | MS WILKES |
| File Number: | SYC 2966 of 2009 |
| Judgment of: | Altobelli FM |
| Hearing date: | 29 June 2009 |
| Date of Last Submission: | 29 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 30 June 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Rees |
| Solicitors for the Applicant: | Abrams Turner Whelan Family Lawyers |
| Solictor-Advocate for the Respondent: | Mr Hearl |
| Solicitors for the Respondent: | Delaney Lawyers |
ORDERS
THE COURT ORDERS PENDING FURTHER ORDER THAT:
The parents are to have equal shared parental responsibility for making decisions about the long term care, welfare and development of the children.
The child [X] born [in] 2009 live with the mother.
The child spend time with the father as follows:
(a)Each Saturday and Sunday between 10am and 2pm commencing 4 July 2009.
For the purposes of changeover the father to collect and deliver the child to the mother’s residence at the beginning and end of the child’s time with the father unless otherwise agreed.
THE COURT ORDERS THAT:
The matter be adjourned to 11 November 2009 at 2pm for mention. The parties are to attend in person or by telephone with their legal representatives if the family report is available on the adjourned date.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia on a date to be advised for the purposes of the preparation of a family report. The Family Report to deal with the following matters:
(i)Any views expressed by the child and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(ii)The nature of the child’s relationship with each parent and other relevant persons;
(iii)The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent;
(iv)The likely effects of any changes in the child’s circumstances;
(v)Any practical difficulties and expense of proposed parenting arrangements;
(vi)The capacity of parents or relevant others to provide for the needs of the child;
(vii)The maturity, sex, lifestyle, background (including lifestyle, culture, and traditions) of the parents;
(viii)The attitude to the child, and to the responsibilities of parenthood demonstrated by each parent;
(ix)Any family violence involving the child or a member of the child’s family;
(x)The extent to which each of the parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent, including participating in long term decisions about the child, spending time and communicating with the child;
(xi)The extent to which each of the parents has facilitated, or failed to facilitate, the other parent participating in long term decisions about the child, spending time and communicating with the child;
(xii)The extent to which each parent has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child;
(xiii)In addition please note the mother’s proposed relocation.
(xiv)Any other matters that the Family Consultant considers important to the welfare or best interests of the said child.
The parties send copies of all of their court documents to the family report writer within 3 days of being requested to do so by the family report writer.
The Family Reporter have regard to affidavits filed in the matter at the date of preparing the report.
I DIRECT the legal representatives for both parties or the parties themselves to confirm with the report writer no later than ten (10) days prior to the scheduled interviews that the interviews will proceed on the dates allocated.
I DIRECT the solicitor for the applicant to notify the Family Reporter of the hearing date and request the Family Reporter be available, if required by the parties, on the first morning of the hearing.
The mother have liberty to apply on 7 days notice to seek interim relocation order.
IT IS NOTED that publication of this judgment under the pseudonym Cole & Wilkes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2966 of 2009
| MR COLE |
Applicant
And
| MS WILKES |
Respondent
REASONS FOR JUDGMENT
(Ex tempore)
This is an application that relates to [X], who is 17 months old. The applicant before me is [X]'s father, Mr Cole. He is 40 years old, lives in [G] in Sydney and describes himself in his documents as a [occupation omitted]. The respondent is [X]'s mother, Ms Wilkes. She lives in [K]. She is 34 years old. In her documents she describes herself as a [healthcare professional] by training, but she is presently a full-time mum. [X]'s parents had a brief relationship that did not result in cohabitation.
On 10 June 2009 this matter came before Kemp FM and a number of orders were made about filing an undertaking, in particular, an undertaking by the mother that she will not permanently relocate the child to Port Macquarie pending further order of the Court.
The competing proposals are as follows: the father's proposals are contained in his applications that were filed on 20 May and 4 June. I record that the substantive issue before the Court is relocation and the discrete issue in respect of which I am asked to make an order is [X]'s time with her father. The mother's proposals are contained in her response that was filed on 9 June. Yesterday when the matter was before me and after the parties had attended a child dispute conference the issues appear to have narrowed considerably so that it came down to the following: on behalf of the father what is sought is unsupervised contact each weekend for two hours on Saturday and Sunday. On behalf of the mother what is sought is unsupervised contact each alternate weekend on Saturday and Sunday for two hours.
Accordingly, the issues before me are actually quite discrete, even though the actual substantive issue between the parties is quite a complex one.
The issue then is making a parenting order that is in the best interests of the child. Even though the issue is a narrow one, I must say there are very few options and alternatives for a number of reasons. Firstly, the geographical considerations with the mother living in [K] and the father in [G]. Also, a practical consideration is the fact that the father works, that the mother is in effect dependent on her mother, the maternal grandmother, for accommodation. These matters tend to indicate that midweek contact is not reasonably practicable. I record that, even though neither party raised it, certainly at this particular stage of life I do not think that overnight is in [X]'s best interests either.
Accordingly, the two proposals appear to be the only one. I have tried to explore the possibility of Saturday or Sunday each week, but I suspect that the concerns about travel, distance, cost as well as the quality of the time that will be experienced have all led to that option not being accepted by the parties.
The applicable law is of course contained in Pt.VII of the Family Law Act, particularly its objects, its principles and the statutory provisions contained in s.60CC. The Full Court's decision in Goode v Goode provides guidance about the procedure to be adopted.
The evidence before me consisted of the affidavits of the parents, the maternal grandmother, as well as the child dispute conference memorandum provided by the family consultant. Let me discuss the evidence by reference to the Family Law Act as I understand it. Despite the numerous concerns that were expressed by the mother in her evidence and indeed also by the maternal grandmother, the mother has agreed that the father's time should be unsupervised. This is very significant in a case like this. It represents a breakthrough in terms of the relationship between the parents and possibly an acceptance that the father can be trusted to look after [X] unsupervised even for a relatively short period. Certainly the mother's proposal about unsupervised contact does demonstrate goodwill and a very possible attitude towards parenting, as well as quite some maturity on her part. The lack of trust that has existed between the parents up until now is perhaps understandable. The mother's concession that contact can be unsupervised I think also signals to the Court that whatever concerns she might have had about [X]'s safety in the past, they do not extend to having unsupervised time for two hours on a Saturday and a Sunday. I really think that changes the focus of this decision. The emphasis shifts from issues about welfare, safety and parenting capacity to issues about what parenting arrangement is the one that will best promote the meaningful relationship that is referred to in the Act.
The issue specifically is frequency; should it be every Saturday and Sunday or should it be each alternate Saturday and Sunday. The evidence actually does little to assist me with this. The father has apparently arranged his life in such a way that he has accommodation in [K] so that he can be there every Saturday and Sunday as easily as he could be there every second Saturday and Sunday. From [X]’s perspective, I do not think there are any issues of practicality either simply because she is living down there. So the evidence actually does not assist me in working out whether it should be the mother's proposal or the father's proposal.
However, when one has regard to Part VII of the Family Law Act, in particular, the objects, the principles and the actual provisions contained in s.60CC of the Family Law Act and other sections, I am actually left with no doubt whatsoever that what the Act encourages is orders that facilitate a meaningful relationship as much as is possible so that, for example, the first of the objects in s.60B(1) is ensuring that children have the benefit of both of their parents having meaningful involvement in their lives to the maximum extent consistent with the best interests of the child. The first of the principles is about the children's right to know and be cared for by both parents regardless of whether the parents are married, separated, have never married or indeed have never lived together. It is interesting that this is a case where the parents have never cohabited. But the principles and the objects apply just as much to their situation as it does to parents who have been living together and married for an awful long time.
When one looks at the objects, the principles and goes into the rest of the Act I am left in no doubt that it favours frequency as an essential component of building and developing a meaningful relationship. In the absence of issues of reasonable practicality - and there are none in this case - I think the law points very clearly to an acceptance of the father's proposal for each Saturday and each Sunday between 10.00am and 2.00pm.
That there be equal shared parental responsibility. I note in this regard that I did not have submissions as such about this. The father seeks equal shared parental responsibility, the mother seeks sole parental responsibility. There is no evidence before me at the moment that would suggest that the presumption contained in the Act ought to be rebutted. Hence, the order for equal shared parental responsibility.
I give leave to the mother to relist this matter before me on seven days' notice in order to seek orders for relocation on an interim basis.
That is done on the basis that her evidence indicates that her accommodation is somewhat tenuous at the moment and therefore she may need to revisit this issue.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Monique Robb
Date: 7 August 2009
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