Deane and Biscoe

[2008] FMCAfam 579

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DEANE & BISCOE [2008] FMCAfam 579

FAMILY LAW – Interim parenting – young child – time with father.

Family Law Act 1975, s.60CC

Goode & Goode [2006] FamCA 1346

Applicant: MR DEANE

Respondent: MS BISCOE

File Number: SYC 2263 of 2008

Judgment of: Altobelli FM

Hearing date: 9 May 2008

Date of Last Submission: 9 May 2008

Delivered at: Parramatta

Delivered on: 9 May 2008

REPRESENTATION

Solicitor Advocate for the Applicant: Mr Levy

Solicitors for the Applicant: Lees & Giveny

Solicitor Advocate for the Respondent: Ms Adams

Solicitors for the Respondent: Maureen Philips Solicitor

ORDERS

1. The parents are to have equal shared parental responsibility for the Child [A] born in 2006.

2. The Child live with the Mother.

3. The Child spend time with the Father as follows:

   (a)On Saturday 10 May 2008 from 9am to 3pm;

   (b)Commencing 18 May 2008 on Sundays from 9am to 3pm; then

   (c)Commencing 21 June 2008, each weekend from Saturday 9am to Sunday 5pm; then

   (d)Commencing 18 July 2008, each alternate weekend from Friday 5pm to Sunday 5pm; and

   (e)Commencing 28 July 2008 and each alternate week thereafter from Monday 10am to Tuesday 5pm; and

   (f)On 30 June 2008, the Child’s birthday, from 10am to 3pm with the Father collecting the Child from the Mother’s residence at the commencment of time and  returning her to the Mother’s residence at the conclusion of time.

   (g)On Father’s Day from 9am to 4pm with the Mother delivering the Child to the Father at his residence at the commencment of time and the father returning the Child to the Mother’s residence at the conclusion of time.

   (h)From 5.00pm on 18 October 2008 to 5pm on 20 October 2008;

   (i)For four consecutive nights during the month of September 2008, on giving one months’ notice in writing, from 12pm on the first day to 12 noon on the fifth day.

   (j)From 4pm on Christmas Eve to 12pm on Christmas Day.

4. Order 3 continues notwithstanding school holidays.

5. All changeovers except as specifically stated in Order 3 above are to take place at [X].

6. On a without admissions basis, the Child is not to be left in care of her paternal great-grandfather and not to be left in presence of the paternal great-grandfather unless two other responsible adults are presnet who have been advised of the terms of this Order.

7. 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  children 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 the Child’s attachments;

   (xiv)Any other matters that the Family Consultant considers important to the welfare or best interests of the said child.

8. 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.

9. The Family Reporter have regard to affidavits filed in the matter at the date of preparing the report.

10. 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.

11. 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.

12. The matter be adjourned to 3 December 2008 at 11.00am for mention. Parties are to attend on that date with their legal representatives if the Family Report is available.

13. The matter be adjourned to 11 February 2009 at 10.00am for a two day final hearing.

14. Each party file and serve any affidavits on which they intend to rely by no later than 4.00p.m on 19 December 2008. No further affidavits to be filed after that date without leave of this Court.

15. The Applicant pay the hearing fee or obtain a waiver of that fee at least 14 days prior to the hearing date.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 2263 of 2008

MR DEANE

Applicant

And

MS BISCOE

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. In this matter the applicant is Mr Deane.  He works in the hospitality industry, he is 23 years old, and lives in [Y] (approximately 80kms from Wollongong) in New South Wales.  The respondent is Ms Biscoe.  She is 26 years old.  She currently resides in Wollongong.  The parties were cohabiting for some period over 2006 and 2007.  The precise details do not matter.  They appear to have separated in October 2007.  The mother has since re-partnered and is, I am informed, pregnant.  They have a child, [A], who was born in 2006.  [A] will be two at the end of next month.

2. The proceedings in question relate basically to the amount of time and the circumstances in which [A] will spend time with her father.  The competing proposals are as follows.  The father's proposal will be reflected in the transcript, but basically he is suggesting three weekly daytime visits followed by three weekly overnight visits, followed by alternate weekends from Friday through to Sunday, together with each Tuesday night.  That is just a summary.  The mother's proposal is as per a document entitled "Mother's proposal" that was handed up this morning, as amended at 2(b), and basically her proposal is for six weekly daytime visits.  Thereafter one night each alternate weekend, plus each Wednesday in Wollongong and, again, I have just provided an overview, a summary of the proposals.

3. The issue in this case is which order or what order is in the best interests of the child, [A] but, really, I think on the facts of this case the question is what is a developmentally appropriate order for a child having regard to her age and her circumstances since birth and separation. The applicable law, of course, is contained in Part 7 of the Family Law Act, and the procedure to govern these applications is set out by the Full Court in its decision in Goode & Goode [2006] FamCA 1346.

4. The evidence before me consisted of the affidavits of both parties.  Of course, the evidence is untested but one is able to form an impression from the evidence based on uncontested or uncontroversial matters.  It would seem, on this basis, that the mother was primarily responsible for the care of [A] since birth.  However, prior to separation the father was involved in parenting, and also, after separation the father was involved in the care of [A].  It seems that there is a high level of tension in the relationship between the father and the mother since separation, and also that there is a high level of tension between the mother and the paternal family. 

5. Paragraph 22 of the mother's affidavit contains some important evidence.  It indicates that the mother took a short holiday for four or five days at that time, and that based on her own evidence, she was prepared to allow [A] to be cared for by the father.  There is a dispute between the parties, a dispute which I cannot resolve in an interim hearing, about the precise details of that agreement for the father to care for [A].  The father, in his affidavit, says that he, in fact, cared for [A] for five nights.  Whether it is four or five nights matters not.  What is significant is it seems there is enough material before me to say that it is relatively common ground between the parties that as recently as November 2007 the mother was confident enough in the father's abilities to care for [A] that she would leave her there for a period of four or five nights.

6. One can only form an impression about evidence in these cases.  One takes into account not just the affidavit evidence, but the way in which the case was presented and, I think, also in this case, the evidence about the correspondence between the solicitors for the mother and father that preceded the litigation, all of which was in evidence before me.  One can form the following impressions from the evidence.  Firstly, that there is little objective basis for the mother's concerns about [A] being able to spend time with her father, and the father's ability to look after [A].  The next impression is that the mother's concerns as set out in her affidavit are quite inconsistent with her actions, for example, in allowing the father to care for [A] in November.  Next, there is a strong impression on my part that the mother's subsequent actions in denying [A] time with her father since November leaves a lot to be desired and, indeed, I record that I find the correspondence from the mother's solicitor to the father's solicitor quite appalling and bordering on unprofessional.  In any event, the impression that is formed is of a woman, albeit a young woman, who lacks insight, who is totally self-focused and simply does not understand the implications of her actions on her daughter. It is truly disappointing.  The correspondence and, indeed, the affidavit material, are quite inconsistent with the manner in which her case was presented today, and it was almost as if it was only until quite recently that the mother finally obtained some good legal advice.

7. What is this case really all about?  Well, as I indicated above, it is about finding a developmentally appropriate parenting order for a child who is in the following circumstances.  She has not turned two.  She has not seen her father for several months.  She lives with her mother in Wollongong whilst her father lives in Sydney.  Transportation for both parties is problematic in different ways.  The mother is pregnant and she tells me that she is about to enter into employment in the child care industry.  It is that factual matrix that provides the challenge in this case. 

8. What is this case not about?  It is not about family violence.  It is not possible for me to make findings about it, but I observe in passing there is scant material advanced on behalf of the mother that would raise this issue anyway.  This is not a case about neglect or abuse, save in relation to one concern that has been expressed about the paternal grandfather. The evidence would suggest that the statutory presumption of equal shared parental responsibility would apply.  It has neither been rebutted or negated.  That means I must consider equal time, or substantial and significant time.  Equal time is not sought by the father and quite correctly so, having regard to [A]'s young age.  However, he does, in effect, seek substantial and significant time.  I must then consider whether that is reasonably practicable and in the child's best interests.

9. There are issues in relation to both having regard to the factual matrix in this case. I am required to apply the considerations set out in section 60CC of the Family Law Act and I refer to the ones that I consider to be most relevant in the present context.

10. The first of the primary considerations is whether there is the benefit to [A] of having a meaningful relationship with both of her parents.  I am satisfied from the evidence of both the mother and the father that the meaningful relationship was there in November.  However, there has been a long time since the father has seen [A].  I believe that the meaningful relationship can be restored with care over a relatively short period of time and I would have thought that in the facts of this case the mother's unilateral actions in denying the father time with [A] and, indeed, moving to Wollongong, could not be allowed to stand in the way of creating the circumstances for a meaningful relationship, provided it is done sensitively and in a child-focused manner.

11. In terms of additional considerations, paragraph (b) of subsection (3) talks about the nature of the relationship that [A] has with her parents.  The evidence leads to the impression that she has had a good past relationship with her father and subject to a gradual reintroduction, there is nothing on the evidence that would lead me to be concerned about a restoration to a full and normal relationship.

12. Paragraphs (c) and (i) of subsection (3) and subsection (4) create real concerns in my mind about the mother's actions and conduct, even on an interim basis.  It is possible that the mother has been poorly advised.  I cannot rule that out, but ultimately I can only judge the mother's actions or inaction and not that of her advisers.  It becomes necessary, in view of the concerns that I have set out above, based on an impression from the evidence, to ensure that there are clear orders but, again, orders that are child-focused.  These considerations would mean that I would not give the mother too much leeway or consideration for circumstances that she has created since separation, especially in terms of her prospective employment.

13. Paragraph (d) requires me to consider the impact of change, the likely effect of any changes in [A]'s circumstances and that, of course, I think, is one of the great challenges in this case, particularly having regard to her age and developmental stage.  That means the issue of overnights will need to be dealt with sensitively, and the amount of time that she spends away from each parent will also need to be sensitively dealt with, but in the context of the factual matrix it actually does not allow for much sensitivity in making parenting orders.

14. Paragraph (e) looks at issues of practical difficulty and expense.  Travel between Sydney and Wollongong is an issue for both parents, but both parents are going to have to make this work, and both parents will be inconvenienced in order to minimise the adverse impact on [A]. 

15. Having regard to all of the above matters, I propose to make the following orders.  They will be orders to the following effect.

16. In relation to the paternal great-grandfather, there is an allegation, untested, of course, about him having acted inappropriately with another grandchild.  There seems to be a measure of agreement between the parties that [A] needs to be protected in these circumstances, though there is disagreement about how precisely that should take place.  There is a risk to the child, and I suspect that both parents want me to make an order, the effect of which is to protect her from any unacceptable risk of abuse, and the only issue is how precisely I would do that.  I am satisfied that provided the father is present or that any two responsible adults are present, one of whom, of course, might be the father, that that will be sufficient protection for [A]. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Associate:  Monique Robb

Date:  6 June 2008