Condamine and Hare

[2009] FamCA 1353

FAMILY COURT OF AUSTRALIA

CONDAMINE & HARE [2009] FamCA 1353

FAMILY LAW – CHILDREN – With whom a child spends time

Family Law Act 1975 (Cth)

Goode v Goode (2006) FLC 93-286
C v C [1989] 2 All ER 465

APPLICANT: Mr Condamine

RESPONDENT: Ms Hare

FILE NUMBER: TVC 564 of 2009

DATE DELIVERED: 22 December 2009

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Murphy J

HEARING DATE: 22 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fellows

SOLICITOR FOR THE APPLICANT: Connolly Suthers

COUNSEL FOR THE RESPONDENT: Mr Hobb

SOLICITOR FOR THE RESPONDENT: Patrick Black & Associates

Orders

1. The father be permitted to travel with the child H born … January 2008 (“the child”) to Adelaide commencing at 9.30am on 26 December 2009 and return the child to the MacDonald’s Restaurant in G by 5.00pm on 4 January 2010.

2. The child shall spend time with the father:

   (a)       from 12.00midday on 7 January 2010 to 5.00pm on 11 January 2010;

   (b)       from 9.00am on 14 January 2010 to 5.00pm on 16 January 2010;

   (c)       from 9.00am – 12.30pm on Christmas Day 2009 in G.

3. The matter be transferred to the Federal Magistrates Court.

4. In the event that the Mother seeks to change the venue for the hearing of any further matters in the Federal Magistrates Court from Townsville to another place, she is directed to file an Application in a Case to that effect to be heard and determined by the Federal Magistrates Court in Townsville.

5. The costs of today of both parties is reserved.

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

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: TVC 564  of 2009

MR CONDAMINE

Applicant

And

MS HARE

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 15 October 2009, final orders were made by consent between the parties, who are the parents of H, born in January 2008.  By those orders, the child was to live with the mother.  The parents were to have equal shared parental responsibility in a number of inclusive, specified ways and the parties were each to have day to day parental responsibility with respect to the time that the child spent with each of them.

2. By paragraphs 5 through 10 of those orders, orders were made for the child to spend time with the father in the period prior to him commencing school.  It will be appreciated, given that he is not yet two, that these orders were intended to apply for some years yet.

3. Paragraphs 11 and following of the orders make separate provision for what shall occur once the child commences school.

4. The instant dispute is heard in a busy judicial duty list some three days prior to Christmas.  There are some issues in respect of which reasons were given during the course of argument and which further reasons do not elucidate.  The central issues arise because of differing interpretations held by each of the parties with respect to paragraph 6 and, additionally, paragraph 9 of those orders.

5. It is common ground that paragraph 6 is ambiguous.  It is also common ground that, whilst paragraph 9 is not ambiguous, it is not capable of enforcement because it lacks particularity as to time and the manner in which the time on Christmas Day shall be effected.

6. Paragraph 6 of the orders provides as follows:

   The father is to spend additional time with the said child on three further occasions per year, such occasions to coincide with the entire Easter period, September gazetted Queensland school holidays and half the Christmas school holidays (three weeks) from so soon as the husband can arrive in [G] until the Sunday preceding his return to Townsville.  The mother may agree, at her discretion, to travel to Townsville for the said holiday periods referred to in this paragraph and, in that event, the father will pay all airfares for the mother and [the child].

7. Reference to the first sentence within that paragraph might give rise to an interpretation that the father is to spend time with the child for three weeks, but in G.  However, the succeeding sentence to that paragraph seems to suggest a much more restrictive interpretation, providing as it does for the mother to travel to Townsville at the father’s expense, (albeit as Mr Fellows, counsel for the father, points out, “no restrictions” are inherent within the sentence once that trip to Townsville occurs).

8. It is argued on behalf of the mother that the overall intention of the orders is significantly more restrictive than an interpretation such as that just outlined indicates.  That is said to be found that in a number of concerns on the part of the mother arising from health and other issues to which she deposes being suffered by the father.

9. In my view, paragraph 6 is ambiguous in the sense that it is capable of attracting the meaning contended for by each of the parties.

10. Paragraph 9 is, in my view, not ambiguous, but in its current form is not capable of enforcement because it lacks precision in respect of the time it purportedly envisages for Christmas Day and specifies only that time shall occur “in the [G] region”, of itself a term pregnant with uncertainty.

11. Having provided to counsel my views about the lack of clarity in the orders as just described, during the course of argument, I sought submissions with respect to the position that the court was thus placed in.

12. It was accepted that the position at law was that, in the case of an order which is ambiguous or unclear in its terms, the court could look behind the terms of the order to the intention of the parties and, if that in turn remained unclear, the issue could be looked at anew by the court.

13. The latter is all the more so, of course, by reason of the statutory edict with respect to the best interests of a child who is the subject of the proceedings before the court.

14. Ultimately, however, the parties were in agreement that the specific issue between the parties for the purpose of the present proceedings was time on Christmas Day and whether, and in what circumstances, the child could travel with his father so as to visit his paternal grandmother in Adelaide.

15. In that respect, it is agreed that the drive from G to Adelaide is approximately 11 hours or, with rest stops and breaks, in the region of 14 hours. It is proposed by the mother, and agreed to by the father, that, in light of that considerable distance and the age of the child, that there be an overnight break at the approximate halfway point of the journey and I intend to so order.

16. That means that there will, in effect, be two days of driving with an overnight break in between.

17. The form of the application before me, then, is mutual applications with respect to this specific period of forthcoming time surrounding the Christmas period in the circumstances where the order is unclear in the way that I have earlier indicated.  That being so, the issue in respect of the forthcoming time is at large.

18. In that respect, a number of matters, it seems to me, need to be taken into account.  Before I refer to those matters specifically, I should record in these brief reasons that I am cognisant of the principles enunciated by the Full Court in Goode v Goode (2006) FLC 93-286

19. Among the principles there expressed is that a court, albeit dealing with a parenting case on an interim basis, nevertheless needs to have regard to the mandatory Objects, Principles and Considerations contained within the legislation.  Moreover, the Full Court in that case reinforced the principles emanating from Full Court decisions in the pre-Reform Act landscape such as C v C [1989] 2 All ER 465.

20. Those decisions, and Goode v Goode (2006) FLC 93-286 itself, emphasise that interim parenting proceedings have a particular context. In particular, they involve a significantly curtailed process during which findings of fact cannot be made and during which recourse to either agreed facts, facts about which there can reasonably be little controversy or evidence independent of the parties (and in particular expert evidence) can be of significant assistance.

21. In this case the mother makes a number of assertions about concerns that she holds in respect of the father’s health issues including some mental health issues.  She says that they lie at the heart of the concerns that she had at the time that she entered into the orders made on 15 October 2009 and those concerns remain.

22. She deposes to at least some of them, including to behaviour occurring subsequent to the making of the orders, in an affidavit filed by her on 18 December 2009, which I have read.  It is not possible to make findings about those assertions save where they were admitted, as I have previously indicated.

23. It seems to me, however, that the mother’s concerns of themselves, that is to say the fact that she holds concerns, is a relevant matter with respect to the best interests of a child who, at the time of making the orders, and at the time that the orders are to be applied, is not yet two.

24. I take that matter into account as an important consideration.  I also take into account a number of other matters which, in my view, are also directly relevant to the Objects, Principles and Considerations set forth in the Act.

25. I take into account in particular that the child has a right to be co-parented by each of his parents and for each of them to play a significant and meaningful role in his life.  I must consider, and I do, that he should have a meaningful relationship with, in this case, his father.

26. I also take into account a number of considerations described in the legislation as additional considerations.  For example, I take account significantly of the fact that, as I have said, the child is yet to turn two.  He is thus a very young child who has been, on any view of the case, including that of the father, cared for predominantly by his mother.

27. There is little dispute on the evidence before me that his mother can be described as his primary carer.  Specifically, in that respect, it is submitted on the mother’s behalf that H has not been away from his mother for more than four days in his life and has spent about eight days in the last eight months with his father.

28. No criticism is levelled at the father in that respect.  Both his employment and geography plainly play a role in that circumstance.  The nature and extent of that relationship is a significant matter in arriving at a decision which is in the best interests of this young child.

29. I also take account the mother’s appropriate concerns about the child in the care of the father.  I use the word “appropriate” not to denote a finding with respect to the veracity, or otherwise, of the mother’s assertions, but rather as a comment on the fact that this mother is, of course, appropriately concerned about a tiny child who has been in her predominant care, leaving her care for a significant period of time.

30. The beginnings of the current dispute occurred in correspondence passing between the parties.  In a letter dated 27 October, that is, some two weeks or so after final orders were made by consent, solicitors on behalf of the father wrote to the mother’s then solicitors proposing that the father would travel to G and spend Christmas Day with the mother and H, as the orders contemplate.

31. The father proposed to spend time with the child from Boxing Day, returning him to the mother on 16 January 2010, that is to say a period of about three weeks.  It will be appreciated that this coincides with the three weeks mentioned in paragraph 6 of the orders.

32. In responding to that proposal, the then solicitors for the mother indicated firstly, that she asserted that the father had been diagnosed with vestibular neuronitis which she asserts had an effect on the father’s eyesight, and “also causes nausea, dizziness and fainting spells”.

33. The letter goes on to say that:

    Our client would like your client to provide her with a doctor’s certificate confirming that your client will be medically fit to drive from [G] to Adelaide in one day, whilst also being solely responsible for the wellbeing of a 23 month old toddler.

34. The letter goes on to assert differences in the timing of the travel to Adelaide being in the child’s best interests and suggests different times for the departure to Adelaide than that proposed initially by the father.

35. It is, though, significant to note that, in that correspondence said to have been sent on the mother’s instructions, it is said “Our client proposes that [the child] be returned to her at 9 am on 16 January 2010”.

36. That is to say no issue is apparently taken on the face of that letter with the time frame contemplated by the original correspondence from the father’s solicitors.

37. It is said on behalf of the mother in the proceedings before me that that correspondence instances the solicitor going beyond the boundaries of her then instructions, evidenced, it is said, by the fact that the mother is now represented by different solicitors who wrote to the father’s solicitors on 7 December 2009 referring not only to the interpretation of the orders earlier referred to but also saying:

    We advise that in our view, given the age of the child, the likely effects of separation anxiety of the child from the mother that the child be returned to the mother daily and only spend, at most, one overnight stay with the father per week.

38. It will be appreciated that this suggestion is made in the context of time spent in G which is asserted to be different to that which the orders are otherwise contended for.  That letter also suggests that “Time spent with the father be gradually increased over a defined period”.

39. The mother’s position with respect to what is now an issue at large determined by H’s best interests is, at least as I perceive it, somewhat murky.  Accordingly, I directed that the mother put forward specific proposals with respect to the forthcoming holiday period.

40. Those proposals are as follows in broad summary: that the journey from G to Adelaide be broken at approximately the halfway point.  Secondly, that the father spend Christmas Day with the child in G from 9 am until 12.30 pm.  Next, it is proposed that from 10 am on 26 December until 5 pm on 2 January 2010 the trip to Adelaide earlier referred to be undertaken with there being an additional period in G subsequent to the child’s return on 2 January from 10 am on 6 January 2010 until 5 pm on 9 January 2010.  Changeover in each case was to be at McDonald’s.

41. As a separate matter, the mother also contends that the matter be transferred to the Federal Magistrates Court and that it be transferred to that court at its Canberra registry (Wagga Wagga circuit) for further mention in the February sittings.

42. By reason of the order which I earlier indicated I would make, and which is conceded as appropriate by counsel for the father, the time that the father spends with the child, in respect of the journey to Adelaide, will encompass, effectively, four days of travel, being two days in each direction, punctuated by an overnight stay at an approximate halfway point in each case.

43. In respect of the time, then, that the child would spend with his father and the paternal grandparents in Adelaide, there would be four whole days not otherwise engaged in travelling.  I am concerned at what seems to me to be a relatively short period of time, particularly when the travel is factored in.  However, that needs to be balanced against the fact that the entire eight day process contemplated by the proposed orders would see H away from his primary carer for a period of eight days.

44. As well as the matters earlier referred to as relevant as additional considerations, the fact that a clearly loving and caring mother can contemplate H being away from her for that period of time is a matter directly relevant to any risk alleged by her to accompany that time away.

45. In my view, the best interests of the child lie in him being able to spend an appropriate period of time with his father to enjoy the particular time of year inherent in the trip, to enjoy periods of time with his paternal grandparents, a relationship with them being a specific matter that the Act instructs I will take in to account.

46. Balanced against that is the need for the child not to be away from his primary carer for a longer period of time than what a child of this age might tolerate.  In looking to that consideration, however, I note that he will be spending time with his father and that the time he will be spending time with his father alone is limited to the two days of travel in each direction and the punctuating overnight stay with respect to each.

47. During the other four days and nights the child will be in the care of the father and his paternal grandparents which, although involving time away from his mother, will also involve him being, it seems uncontroversially, in the context of a family environment where people will love and care for him and no doubt, in view of the circumstances of this case, make a considerable fuss of him.

48. What I propose to do, then, is to attempt to balance the considerations just referred to by permitting, as it were, the father to travel with the child to Adelaide on a journey commencing at 9.30 am on 26 December 2009 and him returning the child to the McDonald’s in G by 5 pm on 4 January 2010.

49. The issues just referred to with respect to the trip to Adelaide apply similarly, in my view, to what might conveniently be described as “block periods” of time, between an as yet very young child, and his absence from his primary carer.

50. That, it seems to me, ought reflect in orders in two respects.  The first is in the number of nights that he spends away from his mother in any one period, secondly, in his capacity to return to his primary carer for a period of time during time that the father spends with him, and thirdly, some geographic curtailment of the father’s time with the child so as to allow that return to occur readily in circumstances where either the father or the child evidences a need for that to occur.

51. I assume for the purposes of these interim proceedings that the father is seeking time with the child because the father considers it to be best for H for him to develop a relationship in an appropriate way, over a long period of time with his father.

52. Equally, I will assume for the purposes of these interim proceedings that the father will, like all responsible parents, seek to parent the child, firstly, in an entirely child-focussed and responsible way, such that if the child became significantly upset, for example, in missing his mother in a way that was not readily placated by the father, he would return the child to the mother so as to allow that situation to be dealt with.

53. I reiterate that these matters are a balance when children of this tender age are involved.

54. It seems to me that, dealing with each of the three matters just referred to, in turn, and in reverse order, if I was to restrict the geographic locality in which the child could spend time with his father to being within 100 kilometres of G, that that would allow the father to spend time in regional areas so as to allow him to have appropriate one-on-one time with his son.  I am told that would also encompass the coast so that he could enjoy all of the usual activities that children of that age would enjoy in a coastal holiday with their father.

55. I make it plain in these reasons that it is intended by these orders that the father ought to be able to avail himself of time with the child at an appropriate town or place on the coast.  If that is 105 kilometres from G, rather than 100, then the greater distance shall prevail.

56. Secondly, it seems to me that, in circumstances where it seems likely that the father will be, for the most part, alone with the child during the time otherwise provided for during this upcoming holiday period, that it should be restricted somewhat to take account of the matters earlier referred to.  There should be provision for the child’s return to his mother for the same reasons.

1. Further, the child will return to his mother, pursuant to the earlier order made by me, on 4 January after a considerable period of time away from his mother and after two long journeys within a relatively short space of time.  It seems to me appropriate, then, that he be given the opportunity to spend some time with his mother and to, as it were, recover from those journeys.

2. This is a matter appropriate to be heard in the Federal Magistrates Court.  That Court should decide venue.  I order accordingly.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  15 March 2010