Edgar and Reagan
[2008] FMCAfam 46
•23 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| EDGAR & REAGAN | [2008] FMCAfam 46 |
| FAMILY LAW – Parenting orders – different arrangements sought for different children. |
| Family Law Act 1975, Part VII |
| Applicant: | MR EDGAR |
| Respondent: | MS REAGAN |
| File Number: | NCM 2831 of 2005 |
| Judgment of: | Lapthorn FM |
| Hearing date: | 13 November 2007 |
| Date of Last Submission: | 14 November 2007 |
| Delivered at: | Newcastle |
| Delivered on: | 23 January 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Boyd |
| Solicitors for the Applicant: | Denise Clark Solicitor |
| Solicitor for the Respondent: | Mr Nash |
| Solicitors for the Respondent: | Nash Allen Williams & Wotton |
ORDERS
All previous parenting orders in relation to the children B born in January 2002 and L born in July 2005 be discharged.
The parties have equal shared parental responsibility for the children.
Each party have the sole parental responsibility for the care, welfare and development of the children whilst the children are in their respective care.
The children live with the father.
The children spend time with and communicate with the mother as follows:
(a)During New South Wales school terms for three weekends in every four week cycle as agreed or failing agreement for three consecutive weekends commencing the first weekend after the commencement of each school term and continuing in that cycle throughout each school term from after school Friday to before school Monday or Tuesday if Monday is a public holiday;
(b)For one half of all school holiday periods as agreed but failing agreement for the first half in odd numbered years commencing at 5.00 pm on the Friday immediately after school finishes to 5.00 pm on the date midway through such holidays and the second half in even numbered years commencing 5.00 pm on the date midway through such holidays to 5.00 pm on the Sunday before school resumes.
(c)From after school Friday to before school Monday on the weekend which comprises Mother’s Day
(d)From 3.30 pm Christmas Eve until 3.30 pm Christmas Day in odd numbered years and from 3.30 pm Christmas Day until 3.30 pm Boxing Day in even numbered years.
(e)In the event that the children are not otherwise with the mother for a minimum of three hours on the children’s birthdays and the mother’s birthday with the mother to collect the children from the father’s residence at the start of her time with the children and the father to collect the children from the mother’s residence at the end of her time with the children.
(f)At such other times as agreed between the parties.
The time the mother spends with the children shall be suspended as follows:
(a)From after school Friday to before school Monday on the weekend which comprises Father’s Day;
(b)From 3.30 pm Christmas Eve until 3.30 pm Christmas Day in even numbered years and from 3.30 pm Christmas Day until 3.30 pm Boxing Day in odd numbered years;
(c)For a minimum of three hours on the children’s birthday and on the father’s birthday if the children are in the mother’s care.
To implement the periods of time the mother is to collect and return the children from and to B’s school with the father to ensure that L is at B’s school in time for collection by the mother at the commencement of such period.
In the event that the mother is not able to return the children to B’s school regularly on Monday mornings the periods of time the children are to spend with the mother pursuant to these orders shall conclude at 5 pm Sundays with the mother to arrange for the children to be delivered to the father’s home.
Each of the parties have telephone communication with the children for two nights per week during any period that the children are with the other party for more than four consecutive days.
The parties do all acts and things and execute all documents to instruct the Principal/s of the children’s school/s to forward to both parties copies of all school reports, school photographs, any notifications and other documents relevant to the children’s welfare and education and in this regard both parties shall be permitted to attend any function at the children’s school/s to which parents would normally be invited.
The parties provide authorisation to any treating medical practitioners of the children to allow both parties to have direct access to the children’s health and medical records.
The parties shall not allow any person to use any form of physical discipline on the children.
Neither party denigrate nor allow any other person to denigrate the other party, in the presence or hearing of the children.
That each party attend a parenting after separation course recommended by the Manager, Child Dispute Services of the Newcastle Registry of the Family Court of Australia and provide to the other party within six months of these orders a copy of the certificate of attendance and completion of such course.
The mother ensure that no person including herself refer in L’s presence to a person as L’s “dad” or “father” other than the applicant father.
BY CONSENT
The parties do all acts and things to have the surname of the children recorded as “Edgar”, such documents as may be required to be completed by the parties within 28 days and lodged with the Registrar of Births, Deaths and Marriages.
Each parent maintain an address and telephone number notified to the other, and each party give the other at least 7 days notice of change of residential address and 24 hours notice of any change of telephone contact number of that party.
Each party be restrained from driving the children in a motor vehicle unless that party is licensed to drive.
IT IS NOTED that publication of this judgment under the pseudonym Edgar & Reagan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCM 2831 of 2005
| MR EDGAR |
Applicant
And
| MS REAGAN |
Respondent
REASONS FOR JUDGMENT
Introduction
The parents of B and L can not agree as to the children’s future parenting arrangements. B is 7 years of age having been born in January 2002. L is 2 and a half years old. He was born in July 2005.
The applicant father seeks orders for both boys to live primarily with him and to spend regular time with the mother. The respondent mother seeks orders that the children live with her and spend time with the father.
During the hearing both parties reached an agreement in relation to L’s care until he commences school in 2011. This agreement provided for a shared care arrangement different to what either asked the court to put into place for B. For reasons that will become apparent later in this judgment the court declined to make those orders by consent. At the conclusion of the hearing the mother again asked the court to make orders for L in accordance with this proposal. The father however having heard the evidence of the family report writer sought orders that were the same for both children.
A number of other matters were agreed to between the parties including the name by which L is to be registered and orders will be made to reflect that agreement.
The Evidence
The applicant father relied on his affidavits filed 14 November 2005, 15 November 2006 and 20 October 2007 along with the affidavits of the paternal grandmother Mrs E filed 15 November 2006 and 7 November 2007. Both the father and his mother gave evidence.
The respondent mother relied on her affidavits filed 5 June 2006 and 13 November 2007 along with an affidavit from her fiancé Mr C filed 13 November 2007. Both the mother and Mr C gave evidence.
A family report was prepared by Ms Priscilla Lowe, Family Consultant on 24 October 2007 and gave evidence.
Background
The father is 28 years of age. He lives in C with his parents and sister and is a student. The mother is 23 and lives in T with her fiancé Mr C. She is not in paid employment outside of the home.
The distance between the respective households is approximately 44 kilometres and would take about 45 minutes to travel.
The parties began living together in January 2001 and separated in January 2004. Consent Parenting Orders in relation to B were made on 4 June 2004 in the Family Court at Newcastle. These orders provided for the child to live with the mother and for the father to have contact, as it was then known, each weekend from 5pm Friday to 3pm the following Monday.
Later that year the parties resumed their relationship but separated again in March 2005. At this point when the relationship ended permanently, the mother was approximately 5 months pregnant. Post separation the father continued to attend medical appointments with the mother, however the number of appointments attended together is disputed. The mother commenced to live with Mr C soon after the parties separated.
The father took the mother to the hospital when she went into labour with L. The mother states she asked the father to take her as her partner was ill with food poisoning and therefore couldn’t help her. The father spent time with L at the hospital and on various occasions following the birth until the mother took the children to Tasmania to visit the maternal family when L was only a few weeks old. The parties agreed the mother and children would travel to Tasmania for 2 weeks and the father would have make up time before and after the trip. While the mother was in Tasmania the father received a phone call from her informing him they were staying in Tasmania for another week, this lead to an argument between the parties. A few days later the father received a text message from the mother informing him he was not the father of L. The father did not see L again for about a year when results of DNA testing were received establishing him to be the biological father of L. Orders made on 7 June 2006 reintroduced time between the father and L.
The father gave evidence that since October 2006 the children have spent time with him more often than the current orders provide, and the situation is more of a shared care arrangement. The mother concedes there have been periods of time the children have stayed with the father over and above what the current orders allow but disagrees with the father as to the extent of such time. The father tendered exhibit F2 which is a calendar he prepared indicating the number of days he says the children were with him. I accept the father’s evidence that the children have been living with both parties for significant amounts of time such that the arrangement could be described as a form of shared care. A continued shared care arrangement in the long term however, is not practical as B starts school in 2008 and the parties live too far apart for B to attend a school and commute there from each parent’s residence. The mother has stated she is not willing to relocate to assist a shared care arrangement and the father says that he could not afford to move closer to the mother.
Although the parties were initially able to communicate after they separated in recent times such communication has become problematic. The father believes that the mother and her partner do not want him to be involved with the children’s lives, especially in the case of L. The mother says she finds the father intimidating.
Legal Principles
Parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975. In determining the outcome of parenting matters the Court must consider the best interests of the child as the paramount consideration.[1] That is the overriding principle.
[1] S 60CA
The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[2]
[2] S 60B lists the objects and principles for Pt VII.
In determining what is in a child’s best interests I must consider the matters set out in s.60CC.
When making a parenting order the court must apply a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility for the child.[3] This presumption may not apply or may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the children’s best interests for it to apply.[4]
[3] S 61DA
[4] S61DA(2) & (4)
In the event that the Court orders the parties to have equal shared parental responsibility for the child the Court must apply the provisions of s 65DAA which provide for a consideration of the children spending equal time with the parents. If the court finds that is not in the children’s best interests or reasonably practicable then the court must consider the children spending substantial and significant time with the parents.
Presumption of Equal Shared Parental Responsibility
Both parties sought orders that provided for them to have shared parental responsibility for the children. Notwithstanding their difficulties in communicating I am satisfied that they are both able to meet their obligations in this regard and will make such an order.
Consideration of Equal Time or Substantial and Significant Time
In determining the matters set out in s 65DAA the court will have regard to the considerations provided for in s 60CC.
The primary considerations: s 60CC(2)
The benefit to the child of having a meaningful relationship with both of the child’s parents
Either proposal would see the children spend substantial and significant time with both parents. Such arrangements should assist in ensuring the children have an opportunity to develop and maintain a meaningful relationship with the parents.
I find the mother to be ambivalent as to L’s relationship with his father and I do not have confidence that she will be able to encourage that relationship. I will address this issue below.
The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence
The mother alleges the father has been intimidating to her and her partner. The father denies this. Both parties accept there have been inappropriate comments made in front of the children. The mother raised with the family report writer a concern that the father may emotionally abuse the children in the future. There is no evidence however to substantiate that concern.
I am satisfied that given both parties have sought orders that would provide for the other parent to have substantial time with the children they do not hold significant ongoing concerns as to the children suffering psychological harm in the other’s care.
The additional considerations: s 60CC (3)
Any views expressed by the child and any factors that the Court thinks are relevant to the weight it should give to the child’s views
Both children are very young and their views would not be determinative of this matter.
The nature of the relationship of the child with each of the child’s parents and other significant people
The family report writer observed both children to have a good relationship with each parent. I am satisfied that that is the case.
The extended paternal family have played a significant role in these children’s lives and would continue to do so under either proposal.
Mr C has also played a significant role for the children. For the first ten to twelve months of L’s life Mr C believed that he was this child’s father. L was encouraged to call Mr C “dad”. Even to this day it is not discouraged.
The maternal grandparents live in Tasmania and therefore do not have the same level of involvement in the boys’ lives as the paternal extended family. I find however that since the boys have travelled to Tasmania with their mother and received visits from the maternal family they will continue to develop their relationship with this side of the family. Both proposals will allow for this to happen.
The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent
This is a significant issue in this case. The father is concerned that the mother is attempting to cut him out of the children’s lives. Although the mother’s proposals would not indicate any such intention I have formed the view that the mother is not necessarily committed to the father’s role and involvement with L in particular.
The mother told the family report writer that she would not do anything to deprive B of his relationship with his father although she admitted telling B that if he lived with his father she would not get to see him. There is no evidence to found any conclusion of that nature and such comments could very well undermine B’s relationship with his father.
The mother maintains that she always believed Mr C was L’s father. Notwithstanding this she left L and B with his father for a few days at a time soon after his birth prior to the children and her travelling to Tasmania. It was during this trip that the mother told the father by text message that he was not the father. Upon her return to New South Wales she would only allow the father to see B.
Notwithstanding the mother left L with the father soon after his birth for block periods of time, she says that until she saw the DNA results she believed that Mr C was the father of L. Coming to terms with the fact that Mr Edgar was the father has been difficult for the mother and Mr C as well as their relationship. She did not desist from having L call Mr C “dad” and to this day I find that she wants to continue to do so. She gave evidence that about 3 months prior to the hearing she stopped encouraging L from calling Mr C “dad”. Her evidence however was that she did not discourage it. She said she refers to Mr C as “M” in front of the children not “dad”. When challenged about this evidence the mother conceded that she may have referred to Mr C as “dad” to L in front of the family report writer in September.
Exhibit ‘A’ is a minute of terms of settlement the parties sought from the court in relation to L. The court refused to make most of those orders. Paragraph 7 however included the provision:
‘That the mother ensure that no person refer in L’s presence to a person as L’s “dad”, or “father” other than the applicant’
I asked the mother if she agreed to that order being made. She said she did because: “it’s going to haunt me for the rest of my life if I don’t”. She went on to say that there would be continuing arguments with the father if she does not. She could not see any negative for either B or L if L is encouraged to call Mr C “dad”. I find that the mother does not believe there would be any harm in L calling Mr C “dad” and in fact would prefer that he did.
I note the proposed order did not specifically bind the mother herself from such reference. Although I am sure that was intended to remove any doubt I propose to include her in the order.
The family report writer expressed an opinion that the mother may have ongoing difficulty promoting Mr Edgar to L as his father. I share that concern. I find that the mother and Mr C were deeply disappointed in the outcome of the DNA tests. Much emotional energy had been expended on a different result. Consequently she has had difficulty coming to terms with Mr Edgar being L’s father. The mother concedes this was the case but says that she has now adjusted to the news. The mother’s evidence did not give me comfort that she has yet managed to accept that Mr C is not the father of L and I doubt she would be able to bring herself to discourage L from calling Mr C “dad”. The test results were received well over a year before the hearing. The mother had ample time to adjust to the news and correct the misconception in such a young child. By leaving the matter unaddressed it would become harder for the child to avoid confusion. The mother does not appear to appreciate this. I am not satisfied that the mother would be able to put aside her disappointment in the fact that Mr Edgar is L’s father sufficient to properly promote him as such. The family report writer was concerned that this issue should be nipped in the bud early rather than left to when the child is older.
I am satisfied however that the father would continue to promote the mother to both children. His proposal would see the children having substantial and significant time with her. I am also satisfied that he has tried to involve the mother in the children’s activities. Although the father is critical of the mother for not taking up many of the father’s suggestions in this regard I accept the mother has had difficulties with transport and she has been reluctant to come into contact with the father since communication between them has become more problematic.
The likely effect of any changes to 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 with whom he or she has been living
The children have been primarily cared for by the mother for most of their lives. Altering such an arrangement would require sensitivity to the children’s needs.
B has spent considerable time with the father and his family but L did not see his father for most of his first year of life. I am satisfied however that he has a good and positive relationship with his father. The family report writer has observed that his primary attachment figure is most likely his mother. I accept this. Given his young age and attachment, I also accept the reporter’s view that if L is to live primarily with his father, he will need to spend time with his mother on a frequent basis.
The family report writer was of the view that B would be able to live with either parent given his good relationship with both of them.
I am further satisfied that as both children have spent more time with the father in 2007 they would be able to cope living primarily with him.
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
I am satisfied that either parent would be able to provide for the children’s day to day physical and intellectual needs. I have addressed my concerns as to the mother’s ability to promote a relationship between L and his father which may have a negative impact on his emotional needs. Mr C to be called “dad” will likely cause confusion for both boys. Subject to this issue I am satisfied that the children are loved and well cared for in both homes.
If the boys were to live primarily with the father I am satisfied that his parents would also provide positive assistance from time to time.
The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents
The mother has admitted to driving without a licence whilst the children have been with her. This is a clear example of neglect by her of her parental responsibilities. I accept the difficulties the mother would have faced in trying to care for the children without a driver’s licence however there was no evidence that any arrangements she needed to attend to could not be done by any other means. The mother gave evidence of having been pulled over by the police whilst the children were with her. On this occasion she was indeed fortunate to find a lenient police officer in allowing her to proceed home with a warning.
Any family violence involving the child or a member of the child’s family and 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
The mother gave evidence that she had recently requested a Apprehended Violence Order against the father. Exhibit M2 was tendered. This was a statement given by the mother to the police in support of an apprehended violence order in relation to an incident that is alleged to have occurred on 15 October 2007. Mr Nash who appeared for the mother tendered the document to establish that the application had been made not as to the truth of its contents. No order had been made by the time this hearing was conducted.
Given the nature of the tender I was not invited to find the mother’s version of events set out in that statement had in fact occurred. I was invited however to find that an inappropriate exchange took place in front of the children on that day. Both parents would benefit from attending a post separation parenting course. The family report writer expressed her concerns during her evidence of the need for the children to be free from observing such conflict between the parents.
Whether it would be preferable to make the order that would be least likely to lead to the situation of further proceedings in relation to the child
The Court, like the parties does not have a crystal ball. I am however concerned that the mother may not be able to promote a proper relationship between L and his father such that there may be a need for further litigation in the future if both children live primarily with her.
Any other relevant fact or circumstance
The family report writer gave evidence of the importance of both children being treated similarly. This is significant in this case as L has been treated differently to B because of the belief of the mother that
Mr C was L’s father. There is a need for both to have similar arrangements even though B is about to commence school. The mother’s proposal would continue the differentiation. I am not satisfied the mother appreciates the importance of this issue and may not consider that in future arrangements.
The extent to which each of the parents has fulfilled or failed to fulfil, his or her responsibilities as a parent
Although the mother failed to allow the father to see L after she told him he was not the father, soon after the DNA test results became available she entered into consent orders for the child to be reintroduced to the father. Since then both children have seen the father regularly.
Discussion
When considering the provisions of s.65DAA the court must first consider if it is in the children’s best interests to spend equal time with each parent. During the hearing I had suggested to both parties that if they lived closer to each other a shared care arrangement may be an option. Neither was interested in doing so for valid reasons.
When it came time for submissions I indicated that because the parties lived some distance apart and that there was at the moment ongoing animosity between them any form of equal shared care would not be practicable. That was conceded by Mr Boyd for the father. The mother maintained her position of a shared care arrangement for L until he commenced school.
Although the children would benefit from having both parents significantly involved it their lives given the factors I raised during submissions I find that it is not practicable for the children to spend equal time with both parents.
This also applies to L even though he will not start school for some time. An important issue in this case was the effects on the children by having different living arrangements for the boys. If L lived on an equal time basis with the parents but B lived primarily with one parent a wrong message would be sent to both children that they are different. They have experienced a different arrangement both in time spent with the father and in their identity since L was born. There would be a risk of compounding confusion if that were to continue. For this reason I am satisfied that it would not be in either boy’s best interests if L was to spend equal time with the parents different to that of B.
This is a finally balanced case as to who should be the primary carer for the children. Although the mother has fulfilled that role to date when I weigh up my concerns as to her ability to promote a positive relationship between L and his father over the long term and her lack of insight in to the needs of the children not to have differing arrangements I find that it would be in their best interests if they lived primarily with the father.
Having found that they should live with the father I am heartened by his submission that the children should spend three weekends a month with the mother. I am of the view that that should be defined as three weekends out of every four and that provided the mother is able to get the children to school on Monday mornings and collect them on Friday afternoons the time they spend with her should be so arranged.
For these reasons I make the orders set out at the commencement of this judgment.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Lapthorn FM
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