Dowling and Wallace

[2014] FCCA 1125

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOWLING & WALLACE [2014] FCCA 1125

Catchwords:
FAMILY LAW – Where parents disagreed on name and kindergarten – whether equal shared parental responsibility in the best interests of the child – whether equal time in the best interests of the child.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60DAA, 61DA, 65DAA, 65DAC

Dundas & Blake [2013] FLC Fam CAFC 133
Chappell & Chappell (2008) FLC 93–382

Applicant: MR DOWLING

Respondent: MS WALLACE

File Number: DGC 776 of 2013

Judgment of: Judge Phipps

Hearing dates: 10 & 11 February 2014

Date of Last Submission: 11 February 2014

Delivered at: Dandenong

Delivered on: 30 May 2014

REPRESENTATION

Counsel for the Applicant: Ms Campbell

Solicitors for the Applicant: Monash-Oakleigh Legal Service Inc.

Counsel for the Respondent: Mr Trim

Solicitors for the Respondent: Dandenong Family Lawyers

ORDERS

1. Parental responsibility will be allocated between the parties in the following manner:

   (a)The parents shall have shared parental responsibility for the child X born (omitted) 2009 in relation to major long-term issues about:

   (i)The child’s name;

   (ii)Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with the parent.

   (b)The mother shall have parental responsibility for the child in relation to all other major long-term issues including:

   (i)The child’s education (both current and future);

   (ii)The child’s religious and cultural upbringing;

   (iii)The child’s health.

   On the conditions that:

   (iv)The mother will contact the father in writing and provide her views about any such issue;

   (v)The mother shall consult with the father with regard to any such issue;

   (vi)The mother and father will make a genuine effort to come to a joint decision about any such issue; and

   (vii)If no agreement is reached between the parties, then within 14 days the mother shall make the final decision and advise the father in writing of the decision about any such issue.

2. The child live with the mother.

3. The child spend time with the father as follows:

   (a)During four year old kindergarten:

   (i)Each Wednesday from 8.30am until 6.30pm;

   (ii)Each Thursday from 4.00pm until 6.00pm;

   (iii)Each alternate weekend from 5.00pm Friday until 5.00pm Sunday.

   (b)When the child commences school:

   (i)Each alternate weekend from the conclusion of school or 3.30pm Friday until the commencement of school Monday or Tuesday if Monday is a public holiday;

   (ii)Each Wednesday from the conclusion of school or 3.30pm until 7.00pm;

   (iii)The first half of each school term holidays commencing at 3.30pm on Friday or the conclusion of school until 5.00pm on the middle Saturday of each holidays;

   (iv)Half of the summer school holidays on a week about basis with the father spending time in the first week commencing at 3.30pm on Friday or at the conclusion of all school terms.

   (c)On special occasions as follows:

   (i)From 3.00pm Christmas Day to 3.00pm Boxing Day in 2014 and each alternate year thereafter;

   (ii)From 3.00pm Christmas Eve to 3.00pm Christmas Day in 2015 and each alternate year thereafter;

   (iii)From 5.00pm on the day preceding Father’s Day until 5.00pm on Father’s Day in each year;

   (iv)From 4.00pm until 6.00pm on the child’s birthday if it falls on a school or kindergarten day and from 1.00pm until 5.00pm if the child’s birthday does not fall on a school day;

   (v)From 9.00am to 5.00pm on the father’s birthday if it falls on a weekend or during the holidays and the child is not otherwise scheduled to be in the father’s care;

   (vi)From 9.00am until 5.00pm each alternate Anzac Day commencing in 2014;

   (vii)By telephone each Monday between 7.00pm and 7.30pm and after the child commences school in addition each Thursday between 7.00pm and 7.30pm.

   (d)Other times as may be agreed in writing (including by text, email or in the communication book) between the parties.

   (e)Paragraphs 3(b)(i)&(ii) are suspended during all school holidays.

   (f)Spend time orders are suspended so that the child lives with the mother:

   (i)From 3.00pm Christmas Eve to 3.00pm Christmas Day in 2014 and each alternate year thereafter;

   (ii)From 3.00pm Christmas Day to 3.00pm Boxing Day in 2015 and each alternate year thereafter;

   (iii)On the child’s birthday from 9.00am until 1.00pm if it falls on a spend time day;

   (iv)From 5.00pm on the day preceding Mother’s Day until 5.00pm on Mother’s Day;

   (v)From 9.00am until 5.00pm on the mother’s birthday if it falls on a weekend or during the holidays and the child is not otherwise in the mother’s care.

4. All handovers that do not take place at the child’s kindergarten or school take place with the father collecting the child from and returning the child to the mother for any handovers that take place before 12 noon and the mother collect the child from and return the child to the Father for any handovers that take place after 12 noon.

5. The father may receive copies of all correspondence and/or notices usually provided to parents of students at the kindergarten or school including kindergarten or school reports, newsletters notification of concerts, sports days, speech nights and parent teacher interviews.

6. The father may attend all kindergarten and school functions usually attended by parents.

7. Each party inform the other of any serious illness or significant injury to the child requiring medical treatment.

8. The father is entitled to attend upon any doctor or other health professional treating the child and to be given information about the treatment and general health of the child by those practitioners.

9. The parties keep each other informed of their residential address and telephone numbers.

10. The parties maintain a communication book to be used only for matters concerning the child’s care, welfare and development.

11. Each party is restrained by injunction from;

    (i)Denigrating the other party to or in the presence of the child or allowing any other person to do so;

    (ii)Discussing family law proceedings in the presence or hearing of the child or allowing any other person to do so.

12. Each party give the other 21 days’ notice in writing of their intention to take the child out of the State of Victoria for a holiday, including details of dates and places.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 776 of 2013

MR DOWLING

Applicant

And

MS WALLACE

Respondent

REASONS FOR JUDGMENT

1. Mr Dowling, the father and Ms Wallace, the mother have one child X born (omitted) 2009.  The child lives with his mother and up until now has spent only daytime contact, but regularly, with his father.  The parties do not agree on future living arrangements.

2. The father proposes that the parties have equal shared parental responsibility for the child and that the child live with the mother.  The child is attending four year old kindergarten this year and will commence school next year.  The father’s proposal for the child’s time with him is:

   a)Term one 2014:

   i.Every Wednesday 4.30pm to 6.00pm;

   ii.Every Thursday 8.00pm to 6.00pm;

   iii.Every Saturday 9.00am until 5.00pm;

   iv.Every alternate Sunday 9.00am to 5.00pm.

   b)Term two 2014:

   i)Every Wednesday for 4.00pm to 6.00pm;

   ii)Every Thursday 8.00am to 6.00pm;

   iii)Every first alternate Saturday 9.00am until 5.00pm;

   iv)Every first alternate Sunday 9.00am to 5.00pm;

   v)Every second alternate Saturday 9.00am until Sunday 9.00am.

   c)Term three 2014:

   i)Every Wednesday 4 30pm until Thursday 6.00pm;

   ii)Every first alternate Saturday 9.00am until 5pm;

   iii)Every second alternate Saturday 9.00am until Sunday 9.00am.

   d)Term four 2014;

   i)Every Wednesday 4.30pm to Thursday 6.00pm, every first alternate Saturday 9.00am until Sunday 9.00am;

   ii)Every second alternate Saturday 9.00am until Sunday 9.00am.

3. The father proposes that from 2015, when the child commences school, he spend equal time with each parent Wednesday 5.00pm until Saturday 5.00pm in one week and Wednesday 5.00pm until Sunday 5.00pm in the next week.

4. The father proposes a communication book and that each party notify the other of intended departure from the State of Victoria.  He proposes that the mother be restrained from allowing Mr J within 100 metres of the child, that the mother provide a smoke-free environment for the child, that the mother refrain from consuming alcohol in the presence of the child and ensure the child does not observe third-party alcohol consumption, that the child be disciplined only by the mother and the father, that the mother refrain from providing the child with soft drinks and that the mother ensure the child wears a helmet when bike riding, skating or riding a scooter.

5. The mother proposes that she have sole parental responsibility for the child and that the child live with her.  She proposes that the child spend time with the father:

   a)During four year old kindergarten:

   i.Each Wednesday from 8.30am until 6.30pm;

   ii.Each Thursday from 4.00pm until 6.00pm;

   iii.Each alternate weekend from 5.00pm Friday until 5.00pm Sunday.

   b)When the child commences school:

   i.Each alternate weekend from the conclusion of school or 3.30pm Friday until the commencement of school Monday or Tuesday if Monday is a public holiday;

   ii.Each Wednesday from the conclusion of school 3.30pm until 7.00pm.

6. She proposes half school holidays, week about in the summer holidays and proposals for special occasions.  She makes proposals for the father receiving kindergarten and school information and attending events parents normally attend and that she keep the father advised of matters associated with the child’s health and education that relate to long-term issues.

7. The significant issues are:

   a)Parental responsibility;

   b)Whether there should be equal time once the child commences school.

8. The dispute about time prior to the child commencing school is in the detail.  The father is proposing more frequent time than the mother while the mother is proposing longer daytime and more overnight time than the father.  The various restrictions that the father seeks received some attention during the hearing.

9. Children’s provisions are contained in Part VII of the Family Law Act 1975 (Cth). The objects of the part are contained in s.60B. Section 60CA provides that in making a parenting order the best interests of the child is the paramount consideration. Section 60CC contains the matters a court must consider in determining what is in the best interests of a child.

10. Section 61DA provides for a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply or is rebutted in circumstances described in the section.

11. Section 65DAA provides that when a court makes or intends to make an order for equal shared parental responsibility the court must consider whether spending equal time with each parent is in the best interests of the child and whether it is reasonably practical. If not then the court must consider whether spending substantial and significant time is in the best interests of the child and whether it is reasonably practical. Section 60DAA(5) describes the matters that court must take into account in determining what is reasonably practical. Section 65DAA(3) describes substantial and significant time.

12. The pathway through the legislation described by decisions of the Full Court of the Family Court commences with a consideration of the s.60CC considerations, the matters a court must take into account when determining what is in the best interests of the children.

13. The mother was born on (omitted) 1969 and is 44 years of age.  The father was born on (omitted) 1966 and is now 48 years of age.  The parties were in a relationship between (omitted) 2008 and (omitted) 2009.  They did not live together.  Their relationship ended soon after the mother became pregnant.

14. The mother has an older child from a previous relationship, Y born (omitted) 2002 who is 12 years of age.  Her father is Mr J. The mother and her children live with the maternal grandmother.  The child has spent regular daytime time with the father and at the commencement of these proceedings on 28 March 2013 the child was spending time with the father on Wednesdays from after kindergarten at about 4.00pm until between 5.30pm and 6.00pm, on Thursdays from 9.00am to 7.00pm, on Saturdays from 9.00am to 5.00pm and on alternate Sundays from 9.00am to 5.00pm.

15. The parties attended a number of mediation sessions, mostly about the child’s name.  The child attended three-year-old kindergarten at (omitted) Preschool.  The mother wished him to stay there for four-year-old kindergarten but the father insisted on a change to (omitted) Kindergarten and at the time of the hearing that is where the child was attending.  Interim orders made on 20 May 2013 provide for the child to live with the mother and to spend time with the father in accordance with the then existing arrangement with the addition of Father’s Day from 9.00am to 5.00pm.

16. A family report was prepared by Ms D.  She observed a good relationship between the child and each parent and notes that the mother acknowledged that the child loves spending time with his father.  Ms D describes the child as well cared for and meeting his developmental milestones.  She notes that the mother has promoted a positive and regular relationship between the child and his father and that the parties appeared to get along amicably in the child’s presence.

Best Interests considerations

Primary considerations

The benefit to the child of having a meaningful relationship with both of the child's parent

1. Both parties acknowledge the child’s good relationship with the other and Ms D observed a good relationship with both.  The mother acknowledges that the child loves spending time with the father.

The need to protect the child from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence.

1. Apart from the father’s proposal concerning Mr J which is dealt with later there is no evidence of risk to the child.

Additional considerations

Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views

1. The child is too young to express any views.

The nature of the relationship of the child with each of the child's parents; and other persons (including any grandparent or other relative of the child)

1. The parties have never lived together so the mother has always been the child’s principal carer.  The child’s principal attachment is to his mother while he has a strong attachment to his father.  Ms D’s observations demonstrate this.  The main point of contention about time is the father’s proposal for equal time once the child is at school.  Ms D does not recommend this and the history of the relationships with the mother being the child’s primary carer and the difficulties the parties have had in reaching agreement about such fundamental matters as the child’s name and which kindergarten the child should attend does not show a relationship with each parent that would facilitate equal time.

The extent to which each party has participated in decisions and care

1. Both parties have participated in the child’s care, the mother as the principal carer.  Both have participated in decision making although with difficulty.

The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. The changes proposed are the commencement of overnight time, proposed by both parties but at different times, and then the father’s proposal for eventual equal time.  The father proposes a change from the commencement of school which would be quite dramatic for the child.  He would change from the stability of having his mother as his principal carer to going to and fro between parents with poor communication and different parenting styles.  He would have one parent, the father, trying to control the detail of the other parent’s care. The evidence of Ms D is against equal time.  It would have a detrimental effect on the child.

The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

1. The parties live close enough so that there are no practical difficulties or expense.

The capacity of each of the child's parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs

1. Each parent has the capacity to provide for the needs of the child.  The mother, as the primary carer, has a greater capacity to provide for emotional and intellectual needs.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant

1. Other than the age of the child and that he is growing up in a normal Australian environment there are no matters which are relevant.

If the child is an Aboriginal child or a Torres Strait Islander child, the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right

1. The child is not Aboriginal or a Torres Strait Islander.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. Each party has the interests of the child at heart and the child has a loving relationship with each parent. Each has a positive and responsible attitude to the child.

Any family violence involving the child or a member of the child's family

1. There is no evidence relevant to this consideration.

Any family violence order that applies to the child or a member of the child's family, if the order is a final order or the making of the order was contested by a person

1. There is no evidence relevant to this consideration.

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. The parties history of disagreement about such significant matters as the child’s name and the kindergarten he should attend show a need to make an order which can, to the extent possible, lessen the chance of disagreement and conflict between the parents.

Any other fact or circumstance that the court thinks is relevant

1. There are no other relevant matters.

Conclusion - Best Interests

1. Up to the time the father proposes equal time the differences between the parties are a matter of detail.  Equal time is not in the best interests of the child.  Ms D advises against it and the disagreement between the parties about important matters concerning the child suggest that the myriad of decisions and consultations about day-to-day matters concerning the child, if there is equal time, would be fraught with difficulty.

1. The mother’s proposal is largely in line with the family report writer’s proposal.  The mother is the primary carer but there is a need for the child to spend substantial time with the father but not equal time.  The mother’s role as the primary carer must be acknowledged and the child should spend the majority of his time with the mother.  The proposal by the mother is supported by the recommendations of the Independent Children’s Lawyer and is in the child’s best interests.

Parental responsibility

1. The parties are in dispute about whether there should be an order for equal shared parental responsibility, proposed by the father, or an order for the sole parental responsibility with the mother as proposed by her. Section 65DAC of the Family Law Act 1975 (Cth) sets out the effect of a parenting order for shared parental responsibility. If there is such an order and the exercise of parental responsibility involves making a decision about major long-term issues in relation to the child the parties are required to make the decision jointly. They are required to consult each other in relation to the decision to be made and to make a genuine effort to come to a joint decision about that issue.

2. The parties have been involved in decisions about two major long-term issues, the child’s name and the child’s kindergarten.  For 3½ years they could not agree on the name and each called the child by their chosen name, the father X and the mother X.  The father wanted X because he is a keen (hobby omitted) and wanted the name of the child after the well-known (omitted) but with two (omitted)’s in the name rather than one.  The mother preferred X.  In addition they could not agree on a surname.  The further detriment to the child was that his birth was not registered.

3. The parties could not agree on a four-year-old kindergarten.  The mother wanted him to attend the same kindergarten he attended as a three-year-old.  The father did not like the teacher.  He said he had been attending as a volunteer gardener at the kindergarten and had seen boys pulling each other over without the teacher intervening.  As well, play equipment in the kindergarten was removed because it was thought to be dangerous and was not replaced.

4. The mother wanted continuity at the kindergarten where the child had made friends.  The father would not agree.  In the end the mother gave into the father.

5. The child will attend school next year and the parties have not agreed on a school.  When the father was asked what would happen if they could not he said that the parties would agree.  The inference I draw is that the father considered that if he persisted he would prevail.

6. There is some evidence of disagreement between the parties about information provided concerning medical appointments and attendance at those appointments.  It has not affected the child’s health but it is another indication of the parties inability to communicate on matters concerning the child’s welfare.

7. In his affidavit of 25 June 2013 the father says that mediation has been one of the only effective ways of resolving our problems.  He says that ideally he would like for the parties to be able to resolve all disputes concerning parenting matters through communicating with each other.  He says that the parties have tried communicating by letters, communication books, phone calls and conversing, that the mother has at times not been cooperative.  He proposes that in the event agreement cannot be reached over an issue that relates to the child’s long-term care, welfare and development the party should be required to attend Family Dispute Resolution to resolve such matters.

8. There is evidence that the father wants to control the mother’s care of the child.  He applies for orders about the food the mother can give the child, about use of a helmet when the child is on the scooter, about smoking and the exclusion of Mr J, the father of Y, from contact with the child.

9. On this latter point the father’s objection to Y’s father has a number of aspects.  He says he has been told that Mr J is bipolar and often refused to take medication and says he has observed his mood swings and saw him get into a heated argument with the mother and her father.  In more recent times his complaint is about the way Mr J has looked at the father.

10. The child will only come into contact with Mr J when he is collecting and delivering Y at the mother’s house.  The mother does not allege any difficulties in the arrangements when Mr J spends time with Y.  There is no evidence of risk to the child from Mr J and yet the father wishes to control the mother in her dealings with Mr J.

11. I do not accept that the mother gives the child inappropriate food, including soft drink, or that she would permit the child to ride a scooter without a helmet or that she will smoke in the presence of the child.  The inference is that the father wishes to control detailed aspects of the mother’s care of the child notwithstanding that she is the child’s primary carer and that the child is well cared for.

12. In Dundas & Blake [2013] FLC Fam CAFC 133 the Full Court of the Family Court of Australia said at [57]:

    Section 61DA is mandatory in its requirement that the presumption must be applied until a level of satisfaction upon the evidence is reached that it would not be in the interests of the child for it to apply. In our view, that level of satisfaction could not have been reached in this case.

13. In Chappell & Chappell (2008) FLC 93–382 the Full Court of the Family Court of Australia said at [75]:

    In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss 60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two.

14. To use the words of the Full Court of the Family Court of Australia the track record of the parents suggests a high probability of deadlock and while further proceedings are not inevitable they will occur if the mother does not give into the father’s position and that is likely to happen this year in a dispute over the school the child should attend.

15. The parties disagreed about four-year-old kindergarten but the mother accepted the father’s demand.  The father’s objections to the three-year-old kindergarten were not shared by the mother and his objections were no more than assertions.  That the mother was satisfied with the teacher and with the kindergarten as a whole.  Given that the selection of school may be for a period of seven years rather than just the one year of four-year-old kindergarten the mother would be unlikely to give in as easily in a dispute about the school.

16. The other best interest consideration relevant to the question of parental responsibility is the child’s relationship with the mother.  The mother is the child’s primary carer and her ability to provide for the child might be inhibited if she is distracted and worn down by disputes with the father, attendance at mediation or further proceedings.

17. The parties finally agreed on the child’s name and so any further name change is unlikely.  The mother should not be free to change the child’s name or place of residence so that it makes it significantly more difficult for the child to spend time with the father.  These two major long-term matters should remain a shared parental responsibility.  The other major long-term matters should be the sole responsibility of the mother but with an obligation on her to notify the father, attempt to reach agreement, and that if agreement is not reached she should be authorised to make the decision.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date:  30 May 2014