DAWSEY & CARLTON

[2014] FamCA 341

FAMILY COURT OF AUSTRALIA

DAWSEY & CARLTON [2014] FamCA 341

FAMILY LAW – CHILDREN – Parental responsibility – With whom a child spends time

APPLICANT: Ms Dawsey

RESPONDENT: Mr Carlton

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: BRC 10839 of 2011

DATE DELIVERED: 2 May 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 2 May 2014

REPRESENTATION

APPLICANT: No Appearance

RESPONDENT: In person

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. All previous Orders are discharged.

2. The Father and the Mother have equal shared parental responsibility for the major long term issues for S born … 2009 (the child) including in respect of:

   (a)the child’s education (both current and future);

   (b)the child’s religious and cultural upbringing;

   (c)the child’s health;

   (d)the child’s names;

   (e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with or live with either parent.

3. The parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility and are to make a genuine effort to come to a joint decision.

4. Each party has responsibility for daily decisions about the day to day care, welfare and development of the child whilst she is in that parties’ care.

5. Until the commencement of Term 1 in 2015, the child live with the Mother and spend time with the Father at all times as may be agreed by the parties in writing but, failing agreement as follows:

   (a)until 1 July 2014:

   (i)commencing 15 May 2014 from after school or 3.00 pm until 6:30 pm each alternate Thursday with the Father or his nominee to collect the child from school at the commencement of time and deliver the child to the maternal grandparents’ residence at the conclusion of time; and

   (ii)commencing 9 May 2014 each alternate weekend from after school or 3.00 pm Friday until school Monday.

   (b)from 1 July 2014 until the commencement of Term 1 in 2015:

   (i)from after school or 3.00 pm Thursday until school Friday each alternate week; and

   (ii)from after school 3.00 pm Friday until school Monday each alternate week.

6. From the commencement of Term 1 in 2015 of the child shall live with each of her parents during school Term periods as follows:

   (a)with the Father:

   (i)from after school or 3.00 pm Thursday until school Friday each alternate week; and

   (ii)from after school or 3.00 pm Thursday until school Monday each alternate week

   (b)with the Mother: at all other times, save for those period otherwise provided for in this Order.

7. From the commencement of Term 1 in 2015, the child shall live with the Father for half of each of the school holiday periods which occur at the end of Terms 1, 2 and 3 of the school year as follows:

   (a)in odd numbered years – for the first half, with time to commence at 9.00 am on the first Saturday after school ends for the Term and to conclude at 9.00 am on the second Saturday after school concludes for the Term;

   (b)in even numbered years – for the second half, with time to commence at 9.00 am on the second Saturday after school ends for the Term and to conclude at 9.00 am on the Saturday immediately before school resumes for the following Term.

8. Commencing with the Christmas School Holiday period in December 2014/January 2015 and for each such period thereafter, the child shall live with the Father:

   (a)in odd numbered years – for the first half of the period, with the time to commence at 9.00 am on the first Saturday after school ends for the Term and to conclude at 9.00 am on the fourth Saturday after school concludes for the term;  and

   (b)in even numbered years – for the second half, with the time to commence at 9.00 am on the fourth Saturday after school ends for the Term and to conclude at 9.00 am on the Saturday immediately before school resumes for the following Term.

9. From the commencement of Term 1 in 2015, the operation of Clause 6 of this Order which shall be suspended during all school holiday periods and shall recommence:

   (a)in odd numbered years – with weekend time to start on the first weekend after school recommences each Term; and

   (b)in even numbered years – with weekend time to start on the second weekend after school recommences each Term.

10. Unless otherwise agreed between the parties in writing, changeovers shall occur in the following manner:

    (a)during school Term – with the Father or his nominee to collect the child after school or 3.00 pm at the commencement of time and to return the child to school at the conclusion of time;

    (b)during school holidays – with the Father or his nominee to collect the child from the maternal grandparents’ home at the commencement of the time she is to spend with him and the Mother or her nominee to collect the child from the Father’s residence at the conclusion of time.

11. The child shall have telephone or Skype communication, with the parent with whom she is not then living, each Tuesday and Thursday evenings between 6.30 pm and 7.00 pm with the parent with whom the child is then living to initiate the communication.

12. Irrespective of the other terms of this Order, the child shall spend the weekend during which Mother’s Day occurs living with the Mother.

13. Irrespective of the other terms of this Order, the child shall spend the weekend during which Father’s Day occurs living with the father.

14. Unless otherwise agreed between the parties in writing:

    (a)the child shall spend from 9.00 am on Good Friday until 9.00 am on Easter Monday:

    (i)in odd numbered years -  with the Father; and

    (ii)in even numbered years - with the Mother.

15. Unless otherwise agreed between the parties in writing:

    (a)the child shall spend from 6.00 pm Christmas Eve until 3.00 pm Christmas Day:

    (i)in odd numbered years – with the Mother; and

    (ii)in even numbered years – with the Father.

16. The child shall spend time on her birthday with the parent with whom she is not then living:

    (a)if the day is a school day – from after school or 3.00 pm until 7:30 pm with the parent with whom she will spend time to be responsible for collecting her from school and returning her to the residence of the parent with whom she is then living; and

    (b)if the day falls on a weekend or during a school holiday period - from 2.00 pm until 7:30 pm with the parent with whom she will spend time to be responsible for collecting her from the other parent’s residence and returning her to the residence of the parent with whom she is then living.

17. Neither parent shall denigrate the other or their family to, or in front of, or within the hearing of, the child and shall direct third parties to refrain from denigrating either party or their family to, or in front of, or within the hearing of, the child.

18. During the time the child is with a parent, that parent shall:

    (a)respect the privacy of the other parent; and

    (b)speak of the other parent respectfully.

19. Each party shall keep the other informed of details of the child’s doctors, health care and other medical treatment providers.

20. By this Order all doctors, health care and medical treatment providers are hereby authorised to provide to each parent, at that parent’s request and cost, all information lawfully able to be provided about the child’s attendance on them.

21. Each party inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child.

22. Each party shall keep the other informed of any day care, before and after school care or school at which the child attends. 

23. By this Order any day care, before or after school care or school at which the child attends is hereby authorised to provide to each parent, at that parent’s request and cost all information lawfully able to be provided about the child’s attendance upon that service.

24. Each parent keep the other parent informed at all times of their residential address, contact telephone number and an email address for use in communication in relation to the child.

25. Each parent advise the other immediately in the event that the child is admitted to hospital or suffers any serious illness or injury and each shall keep the other informed of any medication or treatment prescribed by a medical practitioner for the child (including by providing details of treatment instructions and dosage in relation to any prescribed medication).

26. Each parent shall do all things and sign all documents necessary to apply for a new Australian Passport to issue for the child following the expiration of her current passport.

27. Each party is permitted to remove the child from the Commonwealth of Australia for the purposes of holiday travel and, in the event that either has this intention, he or she shall:

    (a)provide the other parent with no less than 60 days’ notice in writing of such intention, with such notification to include details of the proposed destination, duration of stay and dates during which it is proposed the child shall be absent from Australia; and

    (b)no less than 30 days before the intended date of departure, provide the other party with:

    (i)a copy of the return ticket evidencing the child’s departure from and proposed return to the Commonwealth of Australia; and

    (ii)a copy of an itinerary detailing those places which the child will visit, the proposed accommodation, and postal and telephone contact details (both landline, if available, and mobile) on which the child can be contacted during her time outside the Commonwealth of Australia.

28. Each party shall participate in and complete a Parenting Orders Program offered by Relationships Australia or like organisation and, within seven (7) days of the making of this Order, shall take steps to enrol the in the first available program.

29. Unless otherwise agreed by the parties in writing, the child shall continue to attend B School.

30. Any proposed changes to the Orders be negotiated between the parties with the assistance of a mutually agreed accredited mediator with the costs of such mediation to be shared equally.

IT IS FURTHER ORDERED THAT

1. All outstanding applications are otherwise dismissed and removed from the list of cases requiring finalisation.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dawsey & Carlton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10839 of 2011

Ms Dawsey

Applicant

And

Mr Carlton

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 2 December 2013, this matter was allocated these dates by Kent J at the callover.  On that occasion, Ms Dawsey, (“the mother”) was legally represented and Mr Waller, a solicitor, appeared on her behalf.  After that event and those Orders, the mother filed a Notice of Discontinuance in the Court on 22 January 2014.  When the matter was mentioned by me on 22 April 2014 I became aware Mr Carlton, (“the father”) intended to seek to proceed to seek orders in terms of those contained in the Amended Response filed by him.  It was against this background that I made the Orders in terms that I did on 22 April 2014. 

2. I am satisfied, through a combination of the Order made by Kent J on 2 December 2013 and the contents of Exhibits 1 and 2 before me, that the mother is aware of the proceeding today and is also aware the father intends to ask the Court to proceed in her absence.  I am, therefore, satisfied she has had the opportunity to attend and to make submissions in support of whatever orders she may have sought I make in the proceedings. 

3. I am further satisfied, because of the contents of the father’s Affidavit filed 27 March 2014, to which is exhibited a series of proposals passing between the parties from December 2013 onwards, that there is before me some evidence of the terms the mother may have advanced to the Court if she had appeared today. It is clear from a perusal of those documents that, in fact, there is some agreement as between the parties in relation to the terms of orders that should be made in the best interests of the child.  In these circumstances, I intend to proceed to hear the matter in the mother’s absence.

4. I am satisfied the mother was given notice of the father’s intentions to seek orders today in default of her appearance.  Whilst she discontinued proceedings, the orders sought by her, as outlined in her Initiating Application and the Amended Initiating Application are relevant, to some extent, to a consideration of whether the orders sought by the child’s father are in her best interests.  This is because those documents contain the mother’s proposed orders for the time she asserted, at those respective dates, would be in her daughter’s best interests to spend with her father. 

5. In the Initiating Application, filed on 10 May 2013, the mother sought orders for sole parental responsibility, that the child live with her and that she be permitted to relocate the child to live in the United States of America.  Pending any relocation to the United States, she sought orders that the child spend time with her father each alternate weekend from 9.00 am Saturday to 5.00 pm Sunday.  In addition, the Application also detailed the time the child should spend with her father in Australia if she had, in fact, moved to live in the United States, including for periods of at least two weeks in both 2013 and 2014.  In addition, the mother’s proposal was that S, (“the child”) communicate with her father by Skype twice per week and on certain particularised special days. 

6. In the Amended Initiating Application, filed 20 November 2013, the mother sought, in addition to orders outlined that, until the child relocated to the United States, she spend time with her father each alternate weekend from after day care or school Friday until the commencement of day care or school on Monday.  It is clear, therefore, from the terms of the orders proposed by the child’s mother that she did not identify any particular concern in the father’s parenting of the child and, indeed, implicitly accepted he would meet and ensure that all of the child’s needs would be met during any time she spent in his care. 

7. The child’s father seeks orders in terms which significantly adopt the recommendations contained in the Family Report prepared by Mr J.  It will be apparent from a perusal of any transcript of the discussions between myself and the father during the course of the morning that he has given deep thought to the terms of the orders and has taken on board many of the comments made by Mr J.  In addition, as I have already noted, it is clear that earlier this year the parties attempted to reach agreement about the terms of some orders.  So much can be seen from the annexures to the father’s Affidavit material filed 27 March 2014 which clearly detail the mother’s proposed final orders. 

Principles

1. In these proceedings, being proceedings for a parenting order in relation to the child, S, born in 2009, I may, subject to s 61DA, the presumption of equal shared parental responsibility, and s 65DAB and Division 6 of Part VII of the Act, make such parenting order as I think proper.  I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects.  In deciding whether to make a parenting order, I must regard the child’s best interests as the paramount consideration. 

2. There is nothing in the material before me to suggest that the presumption of equal shared parental responsibility does not apply.  There is no evidence to satisfy me that the presumption should be rebutted on the basis that it would not be in the child’s best interests for her parents to have equal shared parental responsibility for her. 

A brief factual outline

1. The parties commenced a relationship in 2006 and cohabited from June 2006 until about September 2010.  Whilst there is some disagreement about the time the child spent with her father before June 2013, on 19 June 2013, the parties entered into Consent Orders which provided she live with her mother and spend time with her father from 9.00 am Saturday to 5.00 pm Sunday each alternate weekend, with her father to collect her from her maternal grandparents’ residence at the commencement of time and return her to that residence at the conclusion of time.

2. From October 2013, by agreement reached between the parents and in the absence of the necessity of an order mandating or requiring the same, the child has spent three nights per fortnight with her father.

The family report

1. Mr J prepared a Family Report, dated 10 September 2013, following interviews with the parties and observations of the child with each of them in August 2013.  Whilst he did so in circumstances where the child’s mother was seeking orders permitting the international relocation of the child to the United States of America, the recommendations of the Report are clearly relevant and helpful to a determination of future parenting orders. 

2. In the Family Report Mr J records that the mother alleged the father had previously engaged in binge drinking and verbal abuse directed toward her.  The father denies this asserted behaviour.  Whatever may be the position, it is clear from the mother’s own proposal (as contained in the Initiating and Amended Initiating Applications) and from the fact that since October 2013, the child has spent three nights per fortnight in the care of her father and from the mother’s proposals (as outlined in her proposed consent order exhibited to the father’s March 2014 Affidavit) that, whatever behaviours may or may not have been engaged in by the father, they were not to the extent as to pose any sort of risk to the child. 

3. Similarly, whilst it is clear from the material that the father raised issues about the mother’s willingness to support his relationship with the child and willingness to engage in communication with him in order to reach decisions jointly about matters relevant to the child, it is heartening to hear from him that recently, albeit in the last couple of weeks, the mother has provided him with details of her personal email address and also a mobile telephone number upon which he can contact her to discuss matters relating to the child.  It is hoped, therefore, that for whatever reason, the parties are at the commencement of a process of being able to communicate more freely about matters relevant to their daughter’s needs. 

4. At the time of Mr J’s interviews in August 2013, the child was attending a preschool program five days a week.  It was acknowledged by the mother to Mr J that, during the course of the relationship between the child’s parents, they generally shared in her parenting.  It is further noted in Mr J’s Report that the mother asserted the father was helpful and would care for the child whenever she was working with clients.  She expressed no complaints about his level of involvement in the child’s parenting and care.  Further, at the time of the interviews conducted by Mr J, the mother considered that the child was spending overnight time with her father without any problems in transition.  Mr J noted that the mother engaged in no disparagement of the father during her interview with him. 

5. The father reported no violence in the relationship between himself and the child’s mother and also said to Mr J, as he has in other material he has prepared, that he has no concerns about the mother’s parenting capacity. 

6. Mr J’s Report records quite clearly that the child engaged warmly with each of her parents and interacted well with them during his observation. 

1. Mr J concluded, after interviewing the parents and observing them with the child, that she had a secure attachment and positive relationship with her mother, and was developing a security of attachment to her father.  He noted that, as long as the child continued to spend time with her father, there was nothing to suggest her relationship with him would not continue to develop in a meaningful and positive manner.  Mr J also concluded that neither party presented as incapable or unwilling to provide effectively for the child’s care, welfare and development and that both parents clearly had the capacity to engage in, and discharge, the responsibilities of parenthood. 

2. Mr J noted, and I accept, that the child’s father has consistently sought to spend time with her in order to continue to develop their relationship.  I think it likely, as was recorded by Mr J, that it is possible the perceptions of each of the parties of their interaction flow from their own personalities.  For example, Mr J considers it likely the father had communicated with the mother in a respectful manner but, despite that, there was a possibility she may perceive him - whilst asserting himself strongly - to be somewhat aggressive when, in fact, that is not his intention.  It seemed to me from Mr J’s Report that his conclusion that a combination of the differences in each of the personalities of each of the child’s parents was really the explanation for the difficulties that have existed in their communication on occasions. 

3. Mr J also concluded that, on occasions, the mother has acted to attempt to assist the child to spend additional time with her father.  It seems to me the fact that, albeit with some assistance, the parties were able to agree in October 2013 that the child spent three nights per fortnight with her father (and have implemented that consistently, according to the father) in the absence of orders is a positive sign which one hopes points toward a future of an increased ability to cooperate sufficiently to ensure that the child’s needs and right to have a meaningful relationship with each of them is maintained and achieved. 

4. Mr J considered that orders which had provided for a transition for the child via her maternal grandparents’ residence appeared to have assisted her to adapt easily to spending overnight time with her father.  He said there appeared to be no impediment to the father spending regular weekend time with her and nothing to suggest that a proposal for her to spend significant and substantial time with her father in the future was not reasonable. 

5. Mr J opined, and I accept, that, if the child is to develop and maintain a meaningful relationship with each of her parents, it is preferable she have the opportunity to spend at least significant and substantial time with each of them.  He could see no reason, following his observations of the child with her parents and his interview of each of them, why, as she grows older, she should not spend significant and substantial time with her father. 

6. Mr J noted the child would commence Prep in 2014 - she has.  She will commence Grade 1 in 2015.  Mr J could see no impediment to the child spending alternate weekends with her father from after school Friday until before school day care on Monday mornings.  In addition, Mr J considered it to be in the child’s best interests that her relationship with her father be developed as quickly as possible.  He recommended, that after three months of alternate weekend time from Friday to Monday, she commence spending one evening each week with her father and that, fairly quickly after this, her time with him move to an overnight period each alternate week with this time to occur preferably midweek to ensure she is not separated from either parent for any substantial or significant period of time.

7. Mr J supported orders that, from when the child commences in Year 1 in 2015, she live with her mother for nine nights each fortnight and with her father for five nights each fortnight.  He did not support the making of orders for equal time because of the difficulties the parties have experienced in their communication, and I accept his evidence in this regard. 

8. Mr J also recommended that each party complete a Parenting Orders Program course through an agency such as Relationships Australia to assist them to work out ways in which to communicate effectively with each other about matters relevant to the child’s parenting.  Mr J also supported the making of specific orders for holiday times, and by that I understood him to mean orders that attempted to give particularity to the times the child would spend with each parent during holidays, given the history of the communication difficulties between the parents.  On the evidence, such a recommendation seems sound.

9. Mr J supported an order that, from the commencement of school in 2015, the child live with her father from after school Thursday until before school Monday in week one, and from after school Thursday until before school Friday in week two.  He favoured this regime of time, rather than a block of five consecutive nights, because he considered it to be beneficial for the child to spend less time, in a sense, away from each parent, and I agree. 

10. Mr J also suggested the child have the opportunity to speak by telephone with the parent with whom she was not then living on two days or nights per week. 

11. It is clear on the evidence that the child will benefit from having the opportunity to maintain a meaningful relationship with each of her parents.  The evidence supports the making of orders which afford to her the opportunity to do so, including increased time when she commences Year 1 in 2015.  Both of the child’s parents have contributed thus far to her parenting, and both continue to wish to do so into the future.  There is nothing in the evidence to suggest that either parent has any difficulty in discharging the responsibilities of parenthood, or that either parent has any impaired capacity to provide properly for her needs.  Each parent has fulfilled their obligations to support her financially, and each has sought to be involved in her life on a day-to-day basis.

12. Given that I intend to make an order that the child’s parents have equal shared parental responsibility for her, I must consider whether her spending equal time with them would be in her best interests.  As noted above, Mr J does not support the making of an order for equal time.  I conclude, on the evidence before me, that it is not in the child’s best interests that there be an order for her to spend equal time with each of her parents. 

13. Having arrived at this conclusion, I am required to consider whether the child spending substantial and significant time with each of her parents would be in her best interests, and whether this time is reasonably practicable.  If I am persuaded of these matters, then I must consider making such an order.  It is clear the Family Report prepared by Mr J supports the making of such an order.  It is also clear that each parent has signified an acceptance of an order in these terms:   see, in particular, the mother’s proposed consent orders exhibited to the father’s March 2014 Affidavit.

14. I am satisfied that orders which would permit the child to spend substantial and significant time with her father are in her best interests.  There is nothing in the evidence before me to suggest that it is not reasonably practicable for her to spend substantial and significant time with him.  I take into account the fact that the parties have so far implemented the overnight time, including the increase in that time from October 2013, without the necessity of Court orders, and that, despite the difficulties in their communication, as identified by Mr J, he has concluded – and I accept – that they have the capacity to communicate with each other sufficiently to implement such a regime of time and to resolve difficulties that may arise in implementing an arrangement which would see the child spend substantial and significant time with her father.  I also take into account, of course, and accept, Mr J’s support for such orders. 

15. On the evidence before me, I am well satisfied that it is in the child’s best interest that orders be made which afford her the opportunity to spend substantial and significant time with her father. 

16. Given the difficulties, though, at this stage, that the parties seem to have experienced in communicating, (albeit that I note, as conveyed by the child’s father, there has been somewhat of an improvement in that the mother has provided to him the means of direct communication with her for the first time), I consider it is in the child’s best interests that the orders I make are prescriptive. 

17. To achieve this, I intend to make orders which specify the time during holidays that the child is to spend with each of her parents, rather than making an order which would require the parties, at this stage, to engage in an attempt to reach agreement about holiday periods on an ongoing basis.  I also intend to make orders that will, from 2015, suspend the time that the child spends with each parent, pursuant to other orders, during holiday periods, and to make orders which detail the time she is to spend with each of them on special days. 

18. I consider it to be in her best interests that, for the remainder of the 2014 calendar year, there be no specific order for block holiday time.  Rather, it seems to me that whilst she continues to deal with and get used to the imposition of the time associated with attending Prep, it is likely to be in her best interests simply to continue the regime of time within each household until the commencement of Term 1 in 2015.  From that time on, when she commences Grade 1, I consider it to be in her best interests there be orders which afford to her the opportunity to spend half of each school holiday period with each of her parents.  The arrangements that each make for her care during that time will, of course, be a matter for each of them in the discharge of their parental responsibility. 

19. I am confident, on the evidence before me, that each parent is more than capable of making appropriate arrangements for the child’s care during those periods of time, and I am also confident that each is more than capable of making arrangements that will provide to the child an opportunity to either participate in activities or spend time with members of her extended family, be they maternal or paternal. 

20. It is, of course, always open to the parties to agree to vary the terms of orders made if, with the passage of time, the implementation of specific orders gives rise to practical difficulties.  That is often the case. 

21. In the event, however, that the parties are unable to reach agreement about any variation, I am confident that the orders I make will provide to the child the appropriate opportunities to spend time with each of her parents during school holidays, on school days and non-school days, and on special celebratory days. 

22. For the reasons I have expressed, I consider it is in the child’s best interests that I make orders in the following terms, which will permit her to spend substantial and significant time with her father.

23. For these reasons I order as follows.

I certify that the preceding forty (40) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan delivered on 2 May 2014.

Associate:                 

Date:    2 May 2014