Duran and Uribe

Case •

[2010] FMCAfam 1350

•

9 December 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DURAN & URIBE [2010] FMCAfam 1350
FAMILY LAW – Children – Interim parenting orders – one child aged 9 years – best interests of the child – parental responsibility – changeover between parents – place of changeover – whether changeover should take place at mother’s residence – changeover at railway station – telephone communication.
Family Law Act 1975 (Cth), ss.11F, 60CA, 60CC, 61DA, 61DB, 65DAA
Goode & Goode [2006] FamCA 1346; (2007) 36 Fam LR 422; (2006) FLC 93-286
Applicant: MR DURAN
Respondent: MS URIBE
File Number: PAC 2563 of 2008
Judgment of: Scarlett FM
Hearing date: 22 November 2010
Date of Last Submission: 22 November 2010
Delivered at: Sydney
Delivered on: 9 December 2010

REPRESENTATION

Solicitor for the Applicant: Mr Gourlas
Solicitors for the Applicant: George Gourlas Lawyer
Counsel for the Respondent: Mr Eardley
Solicitors for the Respondent: John Spence & Associates
Solicitor for the Independent Children’s Lawyer: Ms Barton
Solicitors for the Independent Children’s Lawyer: Legal Aid NSW

ORDERS UNTIL FURTHER ORDER:

  1. All previous parenting orders are discharged.

  2. The child [X] born [in] 2001 is to live with the Respondent Mother who is to have sole parental responsibility for the said child.

  3. The child [X] is to spend time with the Applicant Father:

    (a)each alternate weekend during school term time from directly after school on Friday until 6:00pm on Saturday commencing on Friday 10 December 2010;

    (b)From the start of the December 2010/January 2011 school holiday period:

    (i)Each alternate weekend from 10:00am on Friday to 6:00pm on Sunday commencing on Friday 7 January 2011;

    (ii)On Christmas Day 25 December 2010 from 11:00am to 8:00pm;

    (iii)From 11.00 am on New Year’s Day 1 January to 6:00pm on Sunday 2 January 2011;

    (c)From the commencement of the first school term in 2011 each alternate weekend from directly after school on Friday to 6:00pm on Sunday commencing on Friday 4 February 2011;

    (d)From 12:00 noon to 4:00pm on Easter Sunday;

    (e)From 12:00 noon to 6:00pm on Father’s Day; and

    (f)At such other times as the parties shall agree in writing.   

  4. Notwithstanding the provisions of Order 3 above, the child [X] will spend the entirety of Mother’s Day with the Mother.

  5. For the purpose of giving effect to Order 3 above, changeovers are to take place as follows:

    (a)Where the Father’s time with the child is to commence directly after school as provided by Orders 3(a) and 3(c), the Father is to collect the child from her school; and

    (b)At all other times the changeover is to take place near the ticket office at the [B] Railway Station.

  6. Each party is restrained and injuncted from discussing these proceedings with the child [X] including the substance of any discussions with the Independent Children’s Lawyer.

  7. Neither party is to denigrate or criticise the other in the presence or hearing of the child or permit any third person to do so.

  8. The Mother is restrained and injuncted from obtaining any medical or psychological report on the child without the consent of the Applicant Father and the Independent Children’s Lawyer.

  9. The child [X] is to have telephone communication with the Father as follows:

    (a)Between the hours of 7:00pm and 7:30pm each Sunday, Tuesday and Thursday; and

    (b)Between the hours of 7:00pm and 7:30pm on the child’s birthday and the Father’s birthday.

  10. For the purposes of giving effect to Order 9 above the Mother must ensure that the child [X]’s mobile telephone is switched on and available for use at the times specified in Order 9 above.

  11. The Mother is restrained and injuncted from relocating the residence of the child [X] either temporarily or permanently from the Sydney metropolitan area without the consent of the Father and the Independent Children’s Lawyer or order of the Court.

  12. The Father must ensure that he is substantially present and able to care for the child [X] at all time when she is spending time with him as provided by these Orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

PAC 2563 of 2008

MR DURAN

Applicant

And

MS URIBE

Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for interim parenting orders concerning the parties’ daughter [X], who is nine years old. [X] was born [in] 2001 and lives with her Mother, the Respondent.

Orders sought

  1. The interim orders sought by the Father are set out in his Amended Application, filed on 13th September 2010. Essentially, he seeks orders that:

    a)The child lives with him each alternate weekend from after school Friday until 7:00pm on Sunday;

    b)The child should spend half the school holidays with him;

    c)When she is not living with her father, the child [X] should have telephone contact with him daily, both morning and evening;

    d)[X] should spend a half day with the Father on Christmas Day, Easter Sunday and at Greek Easter; and

    e)The Mother should be restrained from relocating the child both temporarily and permanently outside the Sydney Metropolitan Area.  

  2. The Mother filed an Amended Response on 23rd September 2010. The interim orders that she seeks are:

    a)That [X] live with her;

    b)That she have sole parental responsibility for the child;

    c)That the child spend time with her father:

    i)From 10:00am to 5:00pm each alternate Saturday;

    ii)From 10:00am to 5:00pm on the Saturday nearest her birthday;[1]

    iii)From 11:00am to 8:00pm on Christmas Day; and

    iv)By telephone every Tuesday and Thursday between the hours of 7:00 and 7:30pm.

    d)That changeover between the parties take place at his parents’ home in [R];

    e)That the parties should not discuss these proceedings with the child;

    f)That the parties not denigrate or criticise each other in the child’s presence or hearing; and

    g)That the Father is to be substantially present during the times when the child spends time with him.

    [1] Which is [date omitted]

  3. The Independent Children’s Lawyer,[2] Ms Barton, has submitted a Minute setting out the Orders that she proposes. In that document, the ICL proposes that [X] should live with the Mother and spend time with the Father:

    a)During school term time, on alternate weekends from after school on Friday until 6:00 pm on Sunday;

    b)During the forthcoming Christmas school holidays, on alternate weekends from 10:00 am on Friday until 6:00pm on Sunday;

    c)From 11:00 am to 6:00 pm on Christmas Day;

    d)From 11:00am on New Year’s Day to 6:00pm on 2nd January 2011;

    e)From the commencement of the 2011 first school term, on alternate weekends from after school to 6:00pm on Sunday.

    [2] Abbreviated to “ICL”

  4. The ICL also proposes that changeover between the parties take place near the Ticket Office at the [B] Railway Station.

  5. Telephone communication is suggested to be on Tuesdays and Thursdays between 7:00 and 7:30pm.

  6. The ICL proposes restraints on:

    a)Each party from discussing these proceedings with the child;

    b)Each party from denigrating or criticising the other in the child’s presence or hearing;

    c)The Mother from obtaining any medical or psychological report on the child without the consent of all parties; and

    d)The Mother from relocating the child either temporarily or permanently outside without leave of the Court or the consent of all the parties.

  7. The Independent Children’s lawyer seeks an order requiring the Father to be substantially present during the times when the child is spending time with him.

Background

  1. The Independent Children’s Lawyer has prepared a useful chronology for the purpose of the interim hearing, upon which I propose to rely to some extent.

  2. The Father was born [in] 1969, so he is 41 years old. The Mother is somewhat younger, at 31. she was born [in] 1979.

  3. The parties married [in] 1997 in Western Australia. In February 1998 they moved to Sydney.

  4. The child [X] was born [in] 2001. From the middle of 2001 to 2002 the Mother stayed in Western Australia. The parties reconciled in 2002 but separated on or about 17th February 2006. They have since been divorced, in 2008.

  5. The Father remarried in October 2009.

  6. In November 2009 the parties attended mediation. The Father commenced spending holiday time with the child.

  7. On 19th March 2010 the Father collected the child [X] from school. Fearing that the Mother planned to relocate to Western Australia with the child, he kept her in his care and did not return her to the Mother until 7th or 8th April.

  8. The Father commenced proceedings on 17th May 2010, seeking orders restraining the Mother from relocating the child’s residence outside the Sydney Metropolitan Area and seeking specified time with her.

  9. The parties attended a Child Dispute Conference with a Family Consultant under s.11F of the Family Law Act on 3rd August 2010. They were unable to reach agreement on any issue.

  10. On 5th August 2010 an Independent Children’s Lawyer was appointed.

  11. Interim orders were made by consent on 23rd September 2010, providing that:

    a)The child would live with the Mother;

    b)She would spend time with her Father from 10:00am to 5:00pm on Saturdays until 9th October, and then from 10:00am to 6:00pm on alternate Saturdays;

    c)Changeovers would take place at the paternal grandparents’ home in [R];

    d)The child would speak to the Father on the telephone each Tuesday and Thursday; and

    e)The Mother was restrained from relocating the child’s residence outside Sydney. 

  12. There were also orders restraining the parties from discussing with the child matters connected with these proceedings and from criticising or denigrating each other in the child’s presence or hearing.

Issues in dispute

  1. The Father seeks equal shared parental responsibility. He also considers that changeovers should take place at the Mother’s residence. He wants more time with the child than the Mother is prepared to concede and he wants to speak to her on the telephone more frequently. The Father modified his request for twice-daily telephone communication to a more reasonable three days per week.

  2. The Father’s concerns are that the Mother still wishes to relocate to Western Australia with the child. He believes that the Mother is refusing to let [X] spend any reasonable time with him, to the child’s detriment. He does not believe the Mother’s claim that child is fearful of him. Instead, he expresses concern about “the emotional instability of the mother and her ability to cater for the emotional needs of [X]”.[3]  

    [3] Affidavit of Mr Duran 15.11.2010 at paragraph [96]

  3. The Mother wants to relocate to Western Australia, which is where her parents, her [siblings] all reside. She also expresses concern that the child is fearful of the Father taking her away again, as he did in March. She claims that the child has been diagnosed by a psychologist with post-traumatic stress disorder[4] as a result of the Father’s actions.

    [4] Affidavit of Ms Uribe 7.7.2010 at paragraph [36]

  4. There is no issue about the child living with the Mother.

Relevant considerations

  1. In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration (Family Law Act 1975, s.60CA).

  2. The Court determines what is in a child’s best interests by having regard to the primary considerations set out in s.60CC(2) and the additional considerations set out in s.60CC(3). The Court must also consider, where possible, the extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent (s.60CC(4)), and, where the child’s parents have separated, events that have happened and circumstances that have existed since the separation occurred (s.60CC(4A)).

  3. I have done so in this case.

  4. The Court must consider the presumption in s.61DA of the Act that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility, and consider whether that presumption should apply in the particular circumstances (see Goode & Goode[5]). In this case, I have decided that the Mother should have sole parental responsibility, at least on an interim basis.

    [5] [2006] FamCA 1346; (2007) 36 Fam LR 422; (36) FLC 93-286

  5. If the Court does decide that it is in the child’s best interests for the parents to have equal shared parental responsibility, the Court must look at the considerations in s.65DAA(1).

  6. I have in this case decided that the Mother should have equal shared parental responsibility until further order, so the considerations in s.65DAA(1) are not relevant. However, s.61DB of the Act provides that, in making a final parenting order in relation to a child, disregard the allocation of parental responsibility made in the interim order.

Consideration

  1. The primary considerations set in s.60CC(2) of the Act are:

    a)The benefit to the child of having a meaningful relationship with both of her parents; and

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

  2. Whilst the Father’s precipitate actions in taking the child in March and not returning her to the Mother until early April were unwise and quite likely unsettling and distressing to the child, I am not persuaded that the Father should not spend an increased and increasing time with her. He will need time to re-establish her confidence in him. I note that the Independent Children’s Lawyer has submitted that there is nothing to suggest that overnight time with the Father is not in [X]’s best interests.

  3. Counsel for the Mother has submitted that the Mother opposes an order that the parties have equal shared parental responsibility. In the light of the hostility of the parties towards each other and their inability to agree on issues concerning their daughter, I am of the view that equal shared parental responsibility, at least on an interim basis, would be quite unworkable. I propose to order that the Mother should have sole parental responsibility for the child until further order. This can, and must, be revisited at the final hearing.

  4. Essentially, the Mother’s case is that current orders are sufficient for the time being. With respect, I do not agree, and I consider it would be in this child’s interests to spend more time with her father, on a graduated basis as suggested by the Independent Children’s Lawyer.

  5. The Father opposes the ICL’s proposal that changeovers between the parties should take place at the [B] Railway Station, on the basis that it is an “unsafe” venue. The Mother disagrees that it is unsafe and no evidence has been led to show that it is significantly lacking in safety.

  6. The Father’s proposal that changeovers should take place at the Mother’s residence is not an attractive proposition, given the Mother’s attitude to him.

  7. I am of the view that, until further order, changeovers should take place at the [B] Railway Station.

  8. The Father seeks an order that the child should spend a half day with him at Greek Easter. He has provided no evidence that Greek Easter is of any significance to him and I see no basis for such an order.

  9. If, as appears likely, this matter is to proceed to a final hearing, I am of the view that a Family Report under the provisions of s.62G of the Act would be useful. There does not appear to me to be any particular justification for appointing an independent expert.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Date:  6 December 2010


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Goode & Goode [2006] FamCA 1346