Cook and Aiken
[2011] FMCAfam 1465
•21 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| COOK & AIKEN | [2011] FMCAfam 1465 |
| FAMILY LAW – Children – parenting orders – interim orders – child aged 23 months – time to be spent by child with father – whether overnight time with father appropriate – best interests of child – equal shared parental responsibility – substantial and significant time. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA |
| Allen & Green [2010] FamCAFC 14; (2010) 42 Fam LR 538 Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 Mallahan & Mallahan [2010] FamCA 631 |
| Applicant: | MS COOK |
| Respondent: | MR AIKEN |
| File Number: | SYC 1689 of 2011 |
| Judgment of: | Scarlett FM |
| Hearing date: | 16 September 2011 |
| Date of Last Submission: | 16 September 2011 |
| Delivered at: | Sydney |
| Delivered on: | 21 September 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Levy |
| Solicitors for the Applicant: | Watts McCray |
| Counsel for the Respondent: | Mr Kearney |
| Solicitors for the Respondent: | Newnhams Solicitors |
ORDERS
UNTIL FURTHER ORDER:
The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the child [X] born [in] 2009.
The child [X] is to live with the Mother.
The child is to spend time with the Father as follows:
(a)from 1:30pm each Monday until 8:00am on Tuesday;
(b)each Wednesday from 1:30pm until 7:00pm;
(c)each Thursday from 1:30pm until 7:00pm;
(d)each Saturday from 11:30am until 7:00pm; and
(e)from 2:00pm to 7:00pm on Christmas Day.
The Father’s time with the child is to be suspended from 29 December 2011 until and including 1 January 2012.
For the purposes of implementing Order (3) above, the Father is to collect the child from her day care centre at the commencement of his time with her and return her to her day care centre at the conclusion of his time with her on all days when the child would normally attend day care.
The parties are to attend a further Child Dispute Conference with a Family Consultant under the provisions of s.11F of the Family Law Act for the purposes of reviewing the child’s adjustment to spending overnight time with the father and considering the frequency of the child’s time with the father after the child has spent at least two (2) nights in the care of the father and as provided by s.11C of the said Act the Child Dispute Conference is to be reportable.
Liberty to apply on seven (7) days’ notice once the Child Dispute Conference referred to in Order (6) above has taken place.
IT IS NOTED that publication of this judgment under the pseudonym Cook & Aiken is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1689 of 2011
| MS COOK |
Applicant
And
| MR AIKEN |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application for interim parenting orders concerning the parties’ daughter, [X], who is not yet two years old. She was born [in] 2009. She lives with her mother and has done so since her parents separated in March this year.
Under the current arrangements between the parties, the child spends time with her father:
a)each Monday, Tuesday and Wednesday from 1:30pm until 5:30pm;
b)each Thursday from 2:00pm until 7:00pm; and
c)each Saturday from 11:30am until 7:00pm.
This has apparently been the case since the parties separated.
Background
The Father was born [in] 1970. He is 41 years of age. He is a [omitted] by profession.
The Mother was born [in] 1975. She is currently 35 years and 11 months old. The Mother is a [omitted] by profession.
The parties were married [in] 2006.
The parties’ only child [X] was born [in] 2009.
The Mother returned to work in April 2010. Initially, she worked on one day each week, increasing to two days a week in July and three days a week in November 2010.
The parties separated on either the 4th or 5th March 2011, when the Mother left the matrimonial home with the child. She moved into rented premises at [F].
The Mother commenced these proceedings on 18th March 2011.
The parties attended a Child Dispute Conference with a Family Consultant on 6th July 2011.
Orders Sought
In the Minute of Order prepared by her counsel for the purpose of the interim hearing, the mother seeks the following Interim Orders:
1. That the parties have equal shared parental responsibility for the child [X] born [in] 2009.
2. That the child live with the Mother.
3. That, commencing Saturday 17 September 2011, the Father spend time with the child as follows:
3.1 Each Monday from 2:00 pm until 5.30pm;
3.2 Each Wednesday from 2:00pm until 5:30pm;
3.3 Each Thursday from 2:00pm until 6:3 pm;
3.4 Each Saturday from 11:30am until 6:30pm; and
3.5 At other times as agreed to by the parties.
4. That for the purposes of beginning and concluding the Father’s time with the child:
4.1On Mondays and Wednesdays the Father shall collect the child from her day care centre at the commencement of his time and the Mother will then collect the child from the Father at the entrance to Woolworths at [N] at the conclusion of the Father’s time; and
4.2On all other days that the Father spends time with the child, the Father shall collect the child from the Mother at [address omitted] in [F] at the commencement of his time and the Mother shall collect the child from the Father at the entrance to Woolworths at [N] at the conclusion of the Father’s time.
5 That the Father’s time with the child be and hereby is suspended as follows:
5.1From and including 26th December 2011 until and including 2nd January 2012;
5.2For a period of 21 days during June 2012 in respect of which the following provisions apply:
5.2.1The Mother shall give the Father 28 days notice in writing specifying the said 21 day period;
5.2.2The Mother has the leave of the court to remove the child from the Commonwealth of Australia for the purposes of an overseas holiday during that 21 day period;
5.2.3The Mother must return the child to the Commonwealth of Australia at the end of the said 21 day period.
5.2.4The Mother shall provide to the Father, in writing and not less than 14 days prior to the departure of the child from Australia, a full itinerary which shall specify the flight numbers and dates of departure and arrival for each flight upon which the child shall be travelling, the addresses at which the child shall be residing while away and a contact telephone number for each of those said addresses.
6. That, within 28 days, the parties shall do all acts and things, sign all documents and equally pay all costs and fees necessary to obtain an Australian Passport for the child and thereafter ensure that the child has at all times a current and valid Australian Passport.
7. That the child’s Australian Passport shall be held by the Mother.
In his Amended Response filed on 12th September 2011, the Father seeks the following interim orders;
1. That pending further order the Mother and Father be granted equal shared parental responsibility for the child [X], born [in] 2009.
2. That pending further order [X] live with the Mother other than the times she lives with the Father as set out herein.
3. That pending further order [X] live with the Father from 16 September 2011 for two months as follows:-
(a)Each Monday from the conclusion of day care at 1.3 pm until 8.00am Tuesday, with the Father to collect [X] from day care at the commencement of his time spent with [X] and returning her to day care at the conclusion of his time spent with [X].
(b)Each Wednesday from the conclusion of day care at 1.30pm until 7.00pm, with the Father to collect [X] from day care at the commencement of his time spent with [X] and the mother to collect [X] at the conclusion from [N] Woolworths.
(c)Each Thursday from 1.30pm until 7.00pm, with the Father to collect [X] at the commencement of his time spent with [X] from [omitted] pool and the Mother to collect [X] at the conclusion from [N] Woolworths.
(d)Each Friday from 5.30pm until 7.00pm Saturday, with the Father to collect [X] from the Mother’s residence at [F] at the commencement of his time with [X] and the Mother to collect [X] at the conclusion from the Father’s residence at [omitted].
The Father seeks further time with the child from and after 16th November 2011, which I do not consider necessary to set out. He also seeks orders providing for the child to spend time with him:
a)on her birthday;
b)on Father’s Day;
c)each alternate Christmas Eve, on Christmas Day and each alternate Boxing Day (commencing in 2012); and
d)each alternate Diwali Day.
The Father seeks orders that the parties be permitted to spend equal amounts of holiday time with the child.
The Father also wants the mother to surrender the child’s passport to the Registrar of the Court.
Areas of Agreement
The parties agree that:
a)They should have equal shared parental responsibility for their daughter;
b)That she should live with the Mother; and
c)That she should spend time with the Father.
Issues
The issues are:
a)The amount of time that the child should spend with the Father;
b)Whether the Father’s time with the child should extend overnight;
c)The Mother wants to spend a week with friends from Boxing Day until 2nd January 2012; and
d)The Mother wants to spend time with the child in San Francisco in 2012.
Evidence and Submissions
The Mother relies on her affidavits sworn on 17th March and 5th September 2011.
The Father relies on his affidavits sworn 9th June and 9th September 2011.
Counsel for the Mother, Mr Levy, submitted that it was too early to experiment with the Father spending overnight time with the child. The child had never spent any overnight time solely in her father’s care. The Mother had raised the child’s distress at changeover as a concern. The Father constantly pressured the Mother for more time with the child.
The Court should take a cautious approach when making interim orders, it was submitted. If considering overnight time with the Father, however, the Court should do so on the basis suggested by the family consultant – that there should be two overnight periods and then the parties should attend a further Child Dispute Conference.
Counsel for the Father, Mr Kearney, submitted that the Court should not entertain the Mother’s application for proposed order 5.2, to remove the child from the Commonwealth in June 2012, as it is a final order and not an interim order.
Noting the Mother’s application to take a holiday with the child in December and early January, Mr Kearney submitted that the Court should recognise that the Father also has time off over that period and therefore the time should be shared between the parties. He submitted that it really remains the Mother’s application to cut back the time spent by the child with the Father.
Further, it was submitted that these are interim proceedings and the Court has a difficulty in making findings of fact. What is not in issue, however is that;
a)There has been a history of close involvement with [X] by both parents;
b)From the age of eight months the child commenced attending day care. She has flourished in day care. Both parties reported that [X] was in the habit of settling with a bottle. Breast feeding is not an issue. The parties have built [X]’s life around their professional commitment. Day care will continue on both parents’ proposals. On at least fifteen occasions the child has been left in the care of the father;
c)There are no concerns about safety, mental health or drug and alcohol issues. This is not a risk case.
Mr Kearney submitted that the Family Consultant said that [X] appeared to have been provided a level of care which has enabled her to develop an attachment to both parents. The Father wants more time with the child than the Mother wants him to have. However, there is a common parenting approach and a common routine for the child.
The Court was being asked to make findings about primary attachments, which it cannot do in an interim hearing. However, the Court can find that [X] has a strong attachment to each parent.
Mr Kearney referred the Court to the decision of Boland J in Allen & Green[1], a decision on appeal from the Federal Magistrates Court. In that decision, at 555, her Honour considered a claim that the Federal Magistrate at first instance failed to give real meaning to the legislative intent of s.65DAA of the Family Law Act, in that she failed to give proper consideration to the father being involved in the child’s daily routine. I note that her Honour found at 556 that there was no merit in that ground, as the Federal Magistrate had considered the evidence relevant to factors under subsections 60CC(2) and 60CC(3) and made orders that provided for the father to spend substantial and significant time with the children.
[1] [2010] FamCAFC 14; (2010) 42 Fam LR 538
Counsel for the Father conceded that it was not appropriate to consider equal time between the parents but urged the Court to consider the question of substantial and significant time.
In reply, counsel for the Mother submitted that the Mother’s proposed order permitting her to take the child to San Francisco in 2012 was not a final order but an interim order.
He also submitted that on either party’s proposal both parents would have a meaningful relationship with the child.
The Family Consultant Memorandum
The Family Consultant, in a memorandum to the Court dated 14th July 2011, noted that the Father expressed a willingness to consider a gradually increasing transitional arrangement and the Mother expressed a willingness to consider overnight time when the child turned two years old.
The Family Consultant suggested that the parents should consider a trial of the child spending one night only with the Father on two occasions a week apart, on the proviso that the Father would return the child to the Mother if she became distressed and he could not settle her.
The Family Consultant suggested a further Child Dispute Conference to review the child’s adjustment and consider whether or not the child would manage one overnight per week with her father:
In the even that this was possible, perhaps the frequency of time per week wit her father could then be reviewed in consideration of Ms Cook’s concern about the amount of travel for [X].[2]
[2] Family Consultant Memorandum to Court 14 July 2011 page 2
The Relevant Law
When a Court is considering whether to make a particular parenting order in relation to a child:
a)it must regard the best interests of the child as the paramount consideration (Family Law Act 1975, s.60CA);
b)it determines what is in a child’s best interests by considering the matters set out in subsections 60CC(2) and 60CC(3); and
c)It must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child unless the presumption is inapplicable or rebutted (s.61DA; see also Goode & Goode[3]).
[3] [2006] FamCA 1346; (20060 36 Fam LR 422; FLC 93-286
When a Court makes a parenting order that provides that a child’s parents are to have equal shared parental responsibility for the child, the Court must consider whether the child spending equal time with each parent is:
a)in the best interests of the child; and
b)Reasonably practicable (s.65DAA(1)).
If the Court does not make an order for the child to spend equal time with each parent, the court must consider whether the child spending substantial and significant time with each parent is:
a)In the best interests of the child; and
b)Reasonably practicable (s.65DAA(2)).
The Court has an obligation to consider the exercise of the power to make each order in the prescribed manner when the precondition for an order for equal shared parental responsibility has been met, even if neither party seeks an order for either equal time or substantial and significant time (see Mallahan & Mallahan[4] at [38]-[39]).
[4] [2010] FamCA 631
I have considered all of the above matters as they apply to this case.
Conclusions
In this case, the parties have agreed on an order that they should have equal shared parental responsibility for their daughter. I propose to make an order accordingly.
In considering whether or not to make an order that the child should spend equal time with each parent, I have come to the conclusion that it would not be in her best interests to do so at this stage. The reasons for that decision are:
a)the young age of the child (twenty three months);
b)the current degree of conflict between the parents; and
c)the concession by counsel for the Father that this is not the time to make an equal time order.
I next consider the question of substantial and significant time with each parent. The child already spends substantial and significant time with her mother. She spends frequent time with her father.
“Substantial and significant time” is defined by subsection 65DAA(3) of the Act. It includes days that fall on weekends and holidays and days that do not. That part of the definition is rather academic when the Court is considering a child who is well below school age.
However, s.65DAA(3)(b) refers to time that the child spends with the parent that allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child.
This must clearly be applicable to overnight time when one is dealing with a child as young as this child is.
The question to be resolved is whether it is in the best interests of the child to spend overnight time with her father. The Family Consultant has suggested a trial period of two occasions of one night each, followed by a further Child Dispute Conference to review the situation.
I am satisfied that it is of benefit to the child to have a meaningful relationship with both of her parents. There are no issues that require the Court to make orders to protect the child from physical or psychological harm from abuse, neglect or family violence.
This little girl was born [in] 2009, so she has not quite reached the age of two years. She is too young for her views to be sought.
From the Family Consultant Memorandum, the child has an attachment to both parents. The Mother is rather reluctant to agree to orders for a substantial increase in the amount of time the child spends with the Father, but told the Family Consultant she would consider some overnight time with the Father once the child turns two, which will take place on 3rd October.
The changes proposed are only a matter of degree and their likely effect on the child is unlikely to be negative.
There is no real practical difficulty or expense in the child spending time with either parent. They live in suburbs of Sydney and changeovers normally take place at the child’s day care centre. This avoids unfortunate confrontation between the parents.
The parents have the capacity to provide for the child’s needs.
Each parent appears to have a positive attitude to the responsibilities of parenthood.
There are no family violence issues or family violence orders.
These are interim orders and there will presumably be a final hearing of the parenting application.
In my view, it is in the best interests of this child to commence spending overnight time with her father. The tentative approach suggested by the Family Consultant of two instances of one night each followed by a review Child Dispute Conference appears to be appropriate.
I will order that the child spend two Monday nights with the Father, followed by a further CDC. This will reduce the number of changeovers. The changeovers will be at the day care centre whenever possible, to avoid friction between the parties.
Both parents want to spend time with the child over the period from after Christmas until early January. That period should be shared. The Mother can have a block of time from 29th December 2011 to New Year’s Day 2012, inclusive.
It is not necessary to make orders at this stage about the Mother’s proposed visit to the United States in June 2012 at this stage.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 21 September 2011
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