Dolores and Dolores

[2009] FamCA 1344

FAMILY COURT OF AUSTRALIA

DOLORES & DOLORES [2009] FamCA 1344

FAMILY LAW – CHILDREN – With whom a child spends time

APPLICANT: Ms Dolores

RESPONDENT: Mr Dolores

FILE NUMBER: SYC 2773 of 2009

DATE DELIVERED: 24 June 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 24 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Harper

SOLICITOR FOR THE APPLICANT: DGB Lawyers

SOLICITOR FOR THE RESPONDENT: Autore & Associates

Orders

1. That the Orders of Wollongong Local Court dated 7 May 2009 in Proceedings Number 207/090030 be discharged.

PENDING FURTHER ORDER:

1. That the parties have equal shared parental responsibility for the child of the marriage … born … February 2008.

2. That the child live with the mother.

3. That the child spend time with the father:

   (a)every Tuesday from 5 pm until 9 am the next morning;

   (b)every Thursday from 3.45 pm until 7.00pm;

   (c)every Saturday from 9.00 am until 12.00 noon the following day;

   (d)

   on two days during Ramadan as agreed between the parties from

   
   

   9.00 am to 6.30 pm;

   (e)on the Muslim New Year (with the father to advise the mother in writing of the date of such event no later than one month prior to such date occurring) from 9.00 am to 6.30 pm;

   (f)on Father’s Day from 9.00 am to 6.30 pm;

   (g)on the father’s birthday from 9.00 am to 6.30 pm;

   (h)on the child’s birthday from 1.45 pm to 7.00 pm.

4. That the father’s time with the child is to be suspended;

   (a)from 11.00 am on the Sunday immediately following the child’s birthday;

   (b)on Christmas Day and Boxing Day each year;

   (c)on the mother’s  birthday;

   (d)at Easter from Easter Friday through to and including Easter Monday;

   (e)on Mother’s Day from 9.00 am.

5. That for the purpose of the father’s time with the child the father shall collect and return the child from the front door of the home where the mother is living and the mother may arrange for a representative to both hand over the child and collect the child on her behalf.

6. That the parties use a communication book to record important matters relevant to the child’s care, welfare and development; the book shall travel with the child and each party shall record in the communication book matters which they consider relevant to the child’s welfare including but not limited to:

   (a)dietary matters;

   (b)issues concerning the child’s health;

   (c)details of any prescription or other medication for the child;

   (d)details of any visits to the child’s General Practitioner or admissions to hospital;

   (e)any changes proposed by either party to the periods that the child is to spend time with the father.

7. That both parties ensure medical treatment required by the child is undertaken by Dr G at D Medical Surgery, D, except in an emergency.

8. That thereafter the matter be transferred to the Federal Magistrates Court for final determination.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2773  of 2009

MS DOLORES

Applicant

And

MR DOLORES

Respondent

REASONS FOR JUDGMENT

1. In these proceedings, a Local Court Magistrate made orders on 7 May 2009 for the parties’ child, who was born in February 2008 and who is, therefore, a year and four months old or thereabouts, to spend his time on a week about basis with his parents. The wife has appealed against that determination, and she has in her notice of appeal set out the times that she would concede the father should spend time with the child on the basis that the child live mainly with her. I shall specify those times at a later point in this judgment.

2. There is no allegation by either party that the other is a bad parent. Both of them say that the other party is a loving mother or father. There is also no evidence to suggest that the child in question is not in, if not perfect health, good health.

3. The parties married in January 2006 and separated on 6 December 2008 when the child was less than 10 months old. The separation had been preceded by a period of when the mother suffered from post-natal depression. In fact, as early as when the child was two or three weeks old, the mother spent five days in hospital for that depression. The child did not accompany her, as I might have expected. Instead, the father relies on the fact that the child was cared for by him. He says that this is an illustration of his relationship with the child and the fact that the mother has not been the principal carer. However, it, in itself, to me demonstrates that the mother was at the time the principal carer and continued afterwards to be so, because the father does not claim he had such a role before she went to hospital or that after she was discharged he continued to have a role of equal care or principal care. It is obvious that the mother took that role and retained it until the orders were made by the Magistrate in May of this year.

4. After the magistrate made those orders, the parties complied with them and, as a result, the child has spent each alternate week with the father in his care or in the care of members of his family or such other people as he chose in his place.

5. I would not wish anybody to take the view that that is to be regarded as any implied criticism of him. The mother used her parents, and maybe others, to help care for the child. That is what normal people do, and there is nothing unusual about it. It is, in my view, in a child’s best interests that he is not encouraged to be too dependant on one or both parents and has the independence and strength to cope with periods of time when other familiar people care for him. It will improve his life by improving his family ties.

6. After the mother was released from her initial stay in hospital, she went on a regime of medication. That resulted in the child having to be bottle-fed. The father asserts, and it does not appear to be denied, that he returned to full-time work –  he has always been employed as a full-time public servant – but that he would return home in the evening from work and, to put it colloquially, take the child off the mother’s hands to give her a break so she could have a rest, so she could attend to her own needs and relax from some of the stress that caring for this little child imposed upon her. In addition to caring for the child in the evenings, the father would also be the one who would get up during the night if the child woke. This gave the mother the opportunity to get a decent night’s sleep and become better able to care for the child and recover from her depression.

7. As I have said, there is no allegation that either parent is other than a good parent. There is a claim by the father that the mother may not be recovered from her post-natal depression, but he does not suggest otherwise that there is any deficit in her parenting.

8. It seems to me that what happened is a manifestation of responsible parenting by both the mother and the father and an indicator of responsible and proper parenting in the future. The mother, herself, was from time to time able to attend her parents’ business for short periods. When she did, she took the child with her. This, too, indicates that she was taking steps in the direction of overcoming her depression.

9. After separation, what occurred confirms my view that, on the evidence, which is not challenged by either party, the mother was the principal carer. When there was a separation, the child stayed with her. Originally a regime was undertaken that they both agreed upon; that is, a regime of contact that they both agreed upon, although the father may have been dissatisfied with it. He was certainly dissatisfied with the fact that the mother dictated the terms of his time with the child. It seems to me that the mother was not thinking of the child when she did that, that she should have given the father some leeway in allowing him to dictate when he saw the child.

10. The father claims that the parties commenced to argue over the time he spent with the child and, on 22 March 2009, there was a tug-of-war or something similar at the front door of the house. To me, it was a manifestation of the parties’ conflict, but it could not be regarded as a serious or significant act of violence on the part of either party.

11. In March, it was the father’s birthday. He was to have contact with the child. On that day, he decided not to return the child at 6 pm as had been arranged. He had had the child from approximately 8 am on that morning. He had not had the child overnight so far as I can discern. The mother took exception to this and, according to the father, when again on 26 March, he was due to again have time with the child at about 3.45 in the afternoon, the mother did not attend with the child and he was not able to have contact. I do not know whether he actually returned the child on the evening of his birthday or he kept him until the next morning, but I do know that that caused some conflict between the father, the mother and the mother’s parents. None of that conflict seemed to be directed at the child’s welfare; it seemed to be directed at jockeying for tactical positions in the dispute between the parties over the time the father would spend with the child.

12. According to the father, on 27 March the parties were negotiating about a regime and that these negotiations had not been concluded by 2 April when the father was advised by the mother that he would not be allowed to see the child unless he signed terms which bound both parties and, therefore, there would be some certainty in the arrangements for residency and the parties’ obligations under those arrangements. In fact, the father was not able to see the child until the first contact session after the Magistrate made her orders in May. That means that for at least five weeks this very young child did not see his father. Both parties should have realised that that could not be in the child’s best interests. The father tried to overcome the situation, so he cannot be blamed for it. The mother and anybody advising her or encouraging her to maintain this stance should understand that it did not display a consideration for the child’s welfare, if the mother or those encouraging her or advising her had the slightest understanding of the needs of a child that age. The fact is that a child of that age cannot retain the memory of familiar people for very long and would have virtually forgotten about the existence of his father after such a lengthy time. That could not be in his interests, particularly because when, eventually, the time came for him to see his father again, his father would appear to be a stranger to him.

13. However, the mother says there are other aspects of the matter to be taken into account. She says that she and the father had undertaken mediation on the issue of child arrangements in January 2009. She says that, through the offices of a mediator, they had agreed on what arrangements should be made and that on 22 January her solicitor sent to the father’s solicitor an application for orders in accordance with that agreement, together with a copy of the agreement which had been recorded at the time of the mediation, and that these documents were sent to the father’s solicitors for the purpose of having consent orders made. But the father would not agree to them, and, therefore, would not sign them, so she feared that he would not return the child.

14. I cannot accept, even though these are interim proceedings and, ordinarily where there are disputed facts, I cannot decide where the truth lies, that that really was the situation. Other disputed facts are such that it seems to me that, although there was some uncertainty because the father later on took it upon himself to set terms by the agreement that is alleged to have occurred when the mediation took place, on the mother’s version of it, she was prepared to allow the child to spend time with his father on four days a week as well as on special days and on two of those days there was to be overnight contact. The mother asserts that, as early as January 2009, she had agreed with the father that the child should spend from 9 am on Saturday to 12 noon on Sunday with him each week. That she then used the father’s failure to return the child on the evening of the 23rd or, if he did so, the fact that he kept him overnight on the night of the 23rd as an excuse for ending any contact with the child strikes me as being unable to be sustained factually. It seems that what the mother was really attempting to do was gain some tactical advantage by refusing to continue with some arrangements. In the event that the father did do anything that was truly inimical to the child’s welfare, in the absence of agreement the mother was capable of approaching a Court for immediate orders. After all, the mother had been represented since 22 January, at least, by a solicitor. So the concept of a claim that the mother makes to justify her complete denial of contact after the father’s birthday in March appears to me to be without any justification.

15. The mother alleges that, on 17 March, after further discussion between the parties, the parties then agreed on a contact regime for the father. It is this regime that the mother now seeks. The regime is that the child principally live with her, that he see the father between 3.45 pm and 6.30 pm on Tuesdays, 3.45 pm and 7 pm on Thursdays and from 9 am on Saturday to 12 noon on Sunday of each week. There is also a regime for special days that she claims was agreed upon.

16. The mother appears to be a Christian and the father a Muslim. Accordingly, they have sensibly agreed for the child to spend appropriate time with each of the parents on special days. The mother asks that orders be made for Ramadan, which I understand is a festival which lasts for a month, there be two extra days when the child spends between 9 am and 6.30 pm with the father; that he also should spend the Muslim new year and Father’s Day as well as the father’s birthday with the father between the same times and on the child’s birthday, from 1.45 pm to 7 pm. She says, however, that she would like the father’s time with the child to be suspended from 11 am on the Sunday following the child’s birthday, on Christmas Day and Boxing Day, on the mother’s birthday as well as from Easter Friday to Easter Monday inclusive and on Mother’s Day from 9 am. She also asks for orders that Dr G of D Medical Centre be his treating medical practitioner.

17. Only two other facts of significance are before me. One is that the father, although he works ordinary weekday hours as a public servant, says that he can accommodate weekabout because he can make appropriate arrangements with his employer and, no doubt, would also be able to have help from his mother and family members and friends in caring for the child on his week. The other important matter is that on 22 April 2009, the mother’s psychiatrist, a very well-known and eminent consultant psychiatrist, Dr P, said the mother has undergone a complete recovery from her psychiatric illness, that she is coping very well, not merely well, and that she displays no evidence of symptoms of post-natal depression. I am not in a position to challenge that evidence and although the father does not accept it and I cannot find that as a fact in the case, I am able to say that it is most likely that it will be found to be the case on the final hearing when issues of fact are decided.

18. The reality of this case seems to me to be this: that one must decide, with very little evidence which really goes to this child’s welfare, what is in his best interests by way of orders until final orders can be made. The Family Law Act provides a quite specific method of determining these issues, and it requires the Court to undertake certain considerations. Firstly, the Court must consider the relevant objects of the Family Law Act as they are expressed in s 60B. This section really brings to the fore the Court’s duty to ensure that actual rather than theoretical best interests of the child are served.

19. The objects of the Act are to ensure the meaningful involvement of both parents in the child’s life as well as to protect the child physically and emotionally and to ensure that he gets adequate and proper parenting and that his parents meet their parental responsibilities. The objects are based on the principle that the child has a right to know and be cared for by both parents. He also has a right to spend time with and communicate with them regularly. Parents should share parental duties and responsibilities. However, all of these principles are still subject to the overall best interests of any child.

20. The assumption which must be made in parenting proceedings is that a child will be better off spending time with a parent than it will be if denied that time unless it is shown that to do so would be contrary to a child’s welfare. There is also a clear statutory presumption in s 61DA that equally shared parental responsibility is in a child’s best interests unless there are reasonable grounds to believe that there has been child abuse or violence in the child’s family. Equally shared parental responsibility does not equate with equal time with each parent. It seems that the Magistrate in this case was mistaken in thinking that it does.

21. Here, I do not need to depart from the presumptions in s 61DA. The only allegation of family violence is of a nature which I regard as virtually insignificant, and both parties accept that the other a good parent, which seems to me to infer that the child’s welfare will not be undermined by family violence because he will not be subjected or exposed to it.

22. The parents have asked, in their applications for orders for equally shared parental responsibility to be the final situation between them. In those circumstances, s 65DAA(1) of the Act requires the Court to consider whether spending equal time with each parent would be in the child’s best interests and whether such an order would be reasonably practical and, if it is, to consider making such an order. I shall now undertake those considerations.

23. I am of the view that there is nothing to suggest that it would not be reasonably practical for the child to spend equal time with both parents. However, in considering whether he should spend equal time with each parent, I must consider his age and the fact that he has been principally cared for by the wife all of his life and, apart from a time when he was a tiny baby, the only other times he has spent overnight with the father are on the father’s birthday in March 2009, if he did so then, and, as a result of the orders of the Magistrate, which means that he would have done so on approximately three occasions of a week at a time between 7 May and now. I note that he is currently in the process of having one of his weeks of care. The probability is that he has had two other weeks with the child.

24. I am of a view that because of the child’s age, it would not be in his best interests to spend equal time with both parents, despite the fact that there have now been two and a half weeks where the child has been spending block overnight periods with his father. In the absence of evidence on what is, in fact, in the child’s best interests, I must rely upon my own experience and knowledge gained in my position as a judge. The wife says – although I cannot accept it because the husband says something which tends to dispute it – that since the child has been spending block time with his father, he has been somewhat disturbed. The father says he has had no trouble with the child.

25. It is my view, not only because I cannot tell where the truth lies but because disturbance may not clearly manifest itself, that there is significant risk to the emotional welfare of a young child if it spends lengthy periods away from the person that it is most familiar with and who has had by far the majority of its care since its birth. I am speaking about a child of this child’s age but extending for some time into the future. It is my understanding that children, until they are four or five years of age, can be disturbed and there is a significant risk of disturbance for them, if they must spend lengthy periods away from their principal carer. I am not prepared to take that risk in this instance.

1. In those circumstances, the Court must consider whether it would be in the child’s best interests to spend substantial and significant time with each parent if it is reasonably practical for it to do so. Here it is reasonably practical. For time spent to be substantial and significant pursuant to s 65 DAA(3), the days spent by the child with a parent must include some weekends, some holidays and some weekdays and must also allow the parent to be involved in the child’s daily routine, as well as events which are significant to the child and allow him to be involved in significant aspects of the parent’s life.

2. The Court must also consider the distance the parties live from one another, their ability to communicate and their likely future ability to do so as well as their ability to negotiate and resolve difficulties in implementing arrangements needed for spending significant time. The parents’ current and future capacity to implement appropriate arrangements as well as the impact the arrangements will have on the child and any other relevant matters must also be considered.

3. Here, the parties apparently have difficulty speaking to one another. I am informed by the father’s solicitor that the mother has refused to communicate with the father except by letters through solicitors. I do not regard that as parental communication. That is a manifestation of a simple inability to communicate. However, the evidence indicates that there has been communication between the parties, and I bear in mind something which I regard as quite important; that is, that the parties do not appear to be as conflictual as one usually sees in proceedings of this nature. They do not appear to have as much animosity towards one another as I usually see, and, even more importantly, they have only been separated for a short time; about six months. The time has not yet passed which has given them the opportunity to settle down and become used to the fact that their situation has changed and to overcome the hurt and humiliation which creates animosity from the breakdown of the marriage or the reasons for breakdown. Time, in this case, has a very good prospect of solving the parties’ inability to communicate. What I have seen of the parties, although it has only been while they have been sitting Court, they seem to have considerably less animosity towards one another and to be more considerate of one another than is usual.

4. As I have said, it is reasonably practical for the child to spend significant and substantial time with the father as a result of the distance that they live from one another and their ability to communicate and the likely increased level of that ability as well as the prospect that they will learn to negotiate and resolve difficulties in implementing arrangements between them that are necessary for the care of the child. However, because of the child’s age, I am somewhat concerned about the idea of requiring the child to spend whole weekends with the father. It seems to me that a whole weekend at this time may be too long for it to be in the child’s best interests. By a whole weekend I mean Friday afternoon to Monday morning. Some lesser time would be much more appropriate. In fact, I am of the view that with a child of this child’s age, one overnight stay at a time is as much as a child can reasonably cope with without the risk of emotional disturbance. Children at his age have a very short memory span and they become very anxious for the person whom they feel the most need for in circumstances when they cannot understand why they are not with that person.

5. Because of what is, in effect, the definition of substantial and significant time, this is not a case where the child’s best interests would be promoted by him spending substantial and significant time with the father. I think that some lesser time should be ordered until the Court is satisfied that he will be able to cope with substantial and significant time without being harmed by being away from his mother for too long.

6. Before deciding what that time should be, I have to negotiate the code provided for deciding what is in his best interests. That code is contained in s 60 CC of the Act. There are two primary considerations: one is the benefit to the child of having a meaningful relationship with both parents. The other primary consideration is the need to protect the child from harm, abuse, neglect or family violence. The second of those considerations need be considered no further here because, in my opinion, the Court need not make orders specifically designed to protect the child in those ways because his loving parents will protect him.

7. There is no doubt that, in this case, the child should have contact with the father which provides him with the ability to have a meaningful relationship with him, in fact, to improve the relationship so that when he is old enough to be able cope with longer time, there can be that longer time. Ultimately, this is a case, it seems to me, where the parties should realise that the child will best be served by having a regime which involves him spending at least substantial and significant time with his father, although I do not have to decide that now or decide when the time might come for it. In fact, I am in no position to make that decision.

8. I shall now deal specifically with the additional considerations required by s60CC(3). The first is any views expressed by the child. He is far too young to express them, although there is an allegation by the mother, which is refuted by the father, that, by his actions, the child has shown what is asserted in the mother’s case; that he is disturbed by being away from her for too long. The father’s case is that he is not disturbed from being away from her for so long as a week at a time. I am not able to come to a conclusion on this issue, although I can say that, on my understanding of children of that age, even if the child does not show disturbance, there is a real risk of him being disturbed by being away from the mother for longer than he can understand and for as long as more than one night at a time.

9. The next consideration is the nature of the child’s relationship with each parent and others of significance. I assume that the child has a good relationship with the mother. It seems to be unchallenged that she has been his primary carer, although the father has had much to do with his care. One can assume that, provided the child is not kept from one or the other parent for too long or longer than his memory span will allow or longer than his ability to cope with being away from that parent will allow, his relationship with both parents will continue to be good. However, as I say, there is a very delicate line to be drawn in deciding what time will not create imbalance for him.

10. The next consideration that I must consider is the willingness and ability of each parent to facilitate and encourage a close relationship between the child and the other parent. There is no evidence to suggest that the father has any deficits in this respect. As I have said at length earlier, there is significant evidence that the mother does not appreciate that she should facilitate and encourage a close relationship between the child and his father. When she used the incident the father’s birthday in March 2009 as an excuse to refuse any contact between the child and his father until orders of the Court in May, she demonstrated her inability and unwillingness. However, I bear in mind that there were two elements of it: firstly, she says she was advised by her lawyer to take the stance she took. That may well be the case. Secondly, she said that she was concerned that the father may, because there were no orders, keep the child too long. As I have said, that was a weak excuse, but it may excuse her to a small degree. After all, she thought it was quite appropriate for her to dictate the regime. I cannot understand why she thought it was so bad of the father that he wanted to have some say too and, of course, she had already conceded that it was appropriate for the father to spend overnight time with the child, yet she used this as an excuse.

11. The next matter I have to consider is the likely effect of change in the child’s circumstances by any orders I might make. Currently the orders are for week about residency. I am of the view that these are likely to harm the child and that I should seriously consider making orders for no more than one night at a time away from the mother. That change in circumstances, if it comes about, is highly likely to improve the child’s emotional wellbeing without really damaging the child’s relationship with the father. I say this because if the child’s emotional wellbeing is harmed, it is likely to damage the child’s long-term relationship with the father. I also bear in mind the fact that if the current arrangements are maintained, the child’s circumstances will include becoming more and more distant from the person who was originally his primary carer; his primary carer for more than the first year of his life, a time when children form their major attachments. To depart from this circumstance by reducing the time away from the mother will, in my opinion, be likely to improve the child’s psychological wellbeing and attachment to his mother.

12. I have to consider the practical difficulties and the expense of contact. I have not been told of any. The father can make such arrangements as are necessary. The mother can make such arrangements as are necessary in the event that I make any of the vast range of orders that I may make in this case.

13. The parental capacity to provide for the child’s needs, including emotional and intellectual needs as well as the capacity of others who are going to be close to the child is also to be considered. I know nothing about the child’s grandparents and little about the parents. I do know that they are well intentioned. However, I also know that the father seeks week about residency. That indicates that he does not really understand the emotional needs of a 16-month-old child. Otherwise, he would not want to spend so much time with his child when, to do so, would be to take the child away from the person who has principally cared for him for his whole life.

14. There is also evidence to suggest that the mother to some degree does not understand the child’s emotional needs, because of the incident where she kept the child from his father for so long for tactical reasons without justification.

15. I cannot say anything about intellectual needs. There is no reason to believe that the parties are not in a good position to provide for the child’s physical needs.

16. I have to consider the child’s maturity, sex, lifestyle and background. In what I have already said, I have said everything that might come into this category, the most important of which is the child’s maturity and background, background being the history of his previous care.

17. The next relevant matter – because there is no Aboriginality issue – is that of parental responsibility and the parents’ attitude to the child. The father appears, but I am not satisfied that it is the case, to be solely concerned with the child’s welfare. I cannot say, but it may be, that he, like the mother, is interested in his own rights to a greater degree than is appropriate. In cases like this, parents ought to consider their children’s rights and needs, to a large degree at least. I am satisfied that, to a significant degree, the mother has considered her rights and put them ahead of those of the child’s. I have already referred to the facts surrounding that.

18. On the issue of family violence, there is nothing further to say. I acknowledge that it is preferable to make orders which are the least likely to lead to further children’s proceedings, although I am acutely aware that, because these are interim proceedings, there is a high likelihood that there will be further children’s proceedings. Nevertheless, it is preferable that I make orders that have a good chance to be converted into final orders; orders which help the parties to realise, if they are working, they can agree to final orders which use my orders as a starting point. Why I say “starting point” is that I assume, in making the orders, that they will not be the end of it. I have already had much to say about the fact that the orders should be that the child spend less time away from his mother because of his age. There is an implicit element in that, as he grows older, he will be able and it will be in his interest, to spend more time with his father than will be provided by the orders that I make.

19. I am not of the view that there are any other relevant matters. My overall view is that the orders that the wife seeks are, to a significant degree, appropriate, although they do not provide enough overnight time with the father. I think that there should be two nights per week which the child spends with his father. It seems to me that on Tuesdays or Thursdays – I would leave this to the parties to nominate before I make my final orders – the child, instead of starting at 3.45 with his father should start at 5 pm and be returned to his mother at 9 am the next morning. Other than that, I am quite satisfied that the orders that the mother seeks are appropriate, and I shall make them.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen

Associate:     

Date:              24 February 2010