FEDERAL CIRCUIT COURT OF AUSTRALIA
| FALZONE & FALZONE | [2013] FCCA 1978 |
| Catchwords: FAMILY LAW – Children – consent orders for equal time – interim injunction restraining mother from attending school during father’s time – parental responsibility – whether equal time should be continued. |
| Legislation: Family Law Act 1975, ss.11, 60B, 60CC, 61DA, 62G, 65DAA, 65DAC Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth), Sched. 1, Pt 2 |
| Barber & Salmon [2009] FMCAfam 272 |
| Applicant: | MS FALZONE |
| Respondent: | MR FALZONE |
| File Number: | LNC 733 of 2010 |
| Judgment of: | Judge Roberts |
| Hearing dates: | 17, 18 & 19 April and 28, 29 & 30 May 2013 |
| Date of Last Submission: | 30 May 2013 |
| Delivered at: | Burnie |
| Delivered on: | 2 December 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Fitzgerald |
| Solicitors for the Applicant: | Legal Aid Commission of Tasmania |
| Counsel for the Respondent: | Mr P McVeity |
| Solicitors for the Respondent: | McVeity & Associates |
| Independent Children's Lawyer: | Mr D Lewis, Barrister |
ORDERS
That all previous parenting orders in relation to X born (omitted) 2005 (“the child”) are discharged.
That MR FALZONE (“the father”) and MS FALZONE (“the mother”) have equal shared parental responsibility for the child.
That except as otherwise provided in these Orders the child shall live with the father in the first week of each fortnight from Sunday at 5.00 pm (or at such other time as the parties may agree) and the child shall live with the mother in the second week of each fortnight from Sunday at 5.00 pm (or at such other time as the parents may agree).
That notwithstanding the provisions of the preceding order hereof the child shall live with the father and the mother on an annual alternating basis from 5.00 pm on 24 December until 5.00 pm on 25 December or on such basis as is otherwise agreed between the parents.
That notwithstanding the provisions of Order No. 3 hereof the child is to be returned to the mother on the Saturday preceding Mother’s Day in each year if the child is not otherwise living with the mother in that week.
That notwithstanding the provisions of Order No. 3 hereof the child is to be returned to the father on the Saturday preceding Father’s Day in each year if the child is not otherwise living with the father in that week.
That for the purposes of these orders and unless the parents otherwise agree the parent with whom the child is living during any particular period must…
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CaseChat Overview and Summary
The court was required to determine the appropriate parenting arrangements for the child, including the allocation of parental responsibility and the child's living arrangements. This involved assessing the child's expressed wishes and considering the weight to be given to those wishes in light of the child's age and maturity.
Judge Roberts discharged previous parenting orders and made new orders establishing equal shared parental responsibility. The child was to live with the father and mother on an alternating fortnightly basis, with specific provisions for annual holidays, Mother's Day, and Father's Day. The court considered the child's expressed wishes, as reported by a Family Consultant, but ultimately gave less weight to the child's stated desire to spend only alternate weekends with her father, noting the child's young age and potential external influences. The court also considered the child's statement about wanting her "own place" and preferring her mother's home, particularly when sick, but noted this preference was made some time ago and was potentially contradicted by later evidence of the child seeking her father's assistance when injured. The court also made orders regarding communication between the child and parents, the transfer of the child between households, and a restriction on the mother attending the child's school during periods the child lived with the father. All extant applications in relation to parenting orders were dismissed.
Orders
Orders of the court
1.
That all previous parenting orders in relation to X born (omitted) 2005 (“the child”) are discharged.
2.
That MR FALZONE (“the father”) and MS FALZONE (“the mother”) have equal shared parental responsibility for the child.
3.
That except as otherwise provided in these Orders the child shall live with the father in the first week of each fortnight from Sunday at 5.00 pm (or at such other time as the parties may agree) and the child shall live with the mother in the second week of each fortnight from Sunday at 5.00 pm (or at such other time as the parents may agree).
4.
That notwithstanding the provisions of the preceding order hereof the child shall live with the father and the mother on an annual alternating basis from 5.00 pm on 24 December until 5.00 pm on 25 December or on such basis as is otherwise agreed between the parents.
5.
That notwithstanding the provisions of Order No. 3 hereof the child is to be returned to the mother on the Saturday preceding Mother’s Day in each year if the child is not otherwise living with the mother in that week.
6.
That notwithstanding the provisions of Order No. 3 hereof the child is to be returned to the father on the Saturday preceding Father’s Day in each year if the child is not otherwise living with the father in that week.
7.
That for the purposes of these orders and unless the parents otherwise agree the parent with whom the child is living during any particular period must deliver the child to the home of the other parent at the end of the particular period.
8.
That the child shall spend time with the parent with whom she is not otherwise living for up to three hours on the child’s birthday and on that parent’s birthday.
9.
That if either party is unable to care for the child overnight at any time that parent must give the other parent the first option of caring for the child during any period that the first parent is unable to care for her.
10.
That the parents must each permit and enable the child to communicate with the other parent at all reasonable times by telephone or by such other age appropriate electronic means that is available.
11.
That unless the parents otherwise agree in writing the mother is restrained from attending at the child’s school during those periods when the child is living with the father pursuant to these Orders.
12.
That all extant applications in relation to parenting orders are otherwise dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In a separate judgment in H v W, Baker J said:The wishes of children should not be discounted simply because they are expressed by children. The weight to be given to the wishes of a child depends upon the individual child and an assessment of the validity of the wishes must be made by the trial judge in each individual case. Such an exercise will require a consideration of both the child’s level of maturity and understanding.[37][37] At page 81,967 – my emphasis. The Family Consultant said this in paragraph 25 of the Family Report:[The child] volunteered that she would like to see her father every second weekend “like A”. (A is her mother’s partner’s 13 year old son.) She considered she would not miss her father if she spent less time with him. The child was only seven years and four months old at the time and the mother was then in a relationship with A’s father. While the mother is no longer in that relationship, one cannot discount the possible influence of that 13 year old boy over the child at the time of her meeting with the Family Consultant. In those circumstances, I do not place much weight upon the child’s apparent desire to spend only alternate weekends with her father as told to the Family Consultant fifteen months ago. The Family Consultant also said this in the same paragraph:Although she thought After-School Care to be “nice” she did not like arriving late to her father’s home as she could not then play with her dog. However, it is illogical to equate that statement with a desire on the part of the child to spend more time with the mother. That is because the dog in question is in the father’s household, so spending more time in the mother’s household would logically mean spending less time with the dog that she loves very dearly. The most that one can deduce from that statement is that the child would have preferred to be with her dog than at after-school care. At paragraph 26 of the Family Report, the Family Consultant said;The most poignant and unsolicited statement made by [the child] was “I want my own place. I don’t have my own place”. [She] made it clear to the writer that she considered her life would be better if she spent more time in one home and that this should be with her mother. She indicated that she prefers to be with her mother when she is sick, she finds her mother’s home more cosy than her father’s home, and she receives more cuddles from her mother than her father and this makes her feel happy. The Family Consultant appeared to base her assessment of the child’s preferred living arrangements in some large measure upon an apparent preference on the part the child to be with the mother when she is sick. For example, she also said this when cross-examined by the ICL:It’s of concern to me that it’s to her mother that she wishes to go to when she’s sick. It’s to her mother that she actually clearly leans towards.[38][38] Transcript: Day 3 at page 212 In eliciting that apparent preference, the child was quite appropriately not asked direct questions, but was asked open-ended questions and the Family Consultant also interpreted “(omitted)” chosen by the child. While I do not doubt the Family Consultant’s ability to interview children appropriately, the conclusion that “it’s to her mother that she wishes to go to when she’s sick” appears to be contradicted by some unchallenged evidence that the child had specifically asked for her father to collect her when she hurt herself at school. In fairness to the Family Consultant, I should point out that occurred some months after the child had been seen by the Family Consultant.