Farland and Farland
[2009] FMCAfam 1215
•8 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FARLAND & FARLAND | [2009] FMCAfam 1215 |
| FAMILY LAW – Children’s issues – parenting orders – arrangement of time between child and parents. |
| Family Law Act 1975, ss.60CA. 60CC. 61DA, 65DAC(3)(a) |
| Applicant: | MR FARLAND |
| Respondent: | MS FARLAND |
| File Number: | BRC 7305 of 2008 |
| Judgment of: | Jarrett FM |
| Hearing date: | 8 October 2009 |
| Date of Last Submission: | 8 October 2009 |
| Delivered at: | Brisbane |
| Delivered on: | 8 October 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hodges |
| Solicitors for the Applicant: | Kerry Barnes lawyers |
| Counsel for the Respondent: | Mr Cooper |
| Solicitors for the Respondent: | Rhonda Sheehy & Associates |
ORDERS
That the Mother and the Father have equal shared parental responsibility for the child [X] born [in] 2004.
That the said child live with each of his parents for equal periods of time as follows:
(a)Order 3(d) of the Orders made 4th October 2007 shall continue until the commencement of school in 2010;
(b)On a week about basis each Friday after school or 3.00pm if not a school day to commence Friday 29th January 2010 with the Father;
(c)With the Father for the first half of the Easter public holidays/school holidays and the June/July and September/October school holidays and the Christmas school holidays in odd numbered years and the second half in even numbered years;
(d)With the Mother for the second half of the holidays referred to in 2.3 hereof in odd numbered years and the first half in even numbered years;
(e)Christmas Day will be spent with the parent having the first half of the Christmas school holiday period.
(f)That the Father spend time with the child on the Father’s Day weekend from 5.00pm Friday until 5.00pm Sunday;
(g)That the Mother spend time with the child on the Mother’s Day weekend from 5.00pm Friday until 5.00pm Sunday;
(h)That each parent be at liberty to telephone the child when in the other parent’s care on Sunday and Wednesday at 6.30pm;
(i)That the child spend time with each parent on their respective birthday from 9.00am to 5.00pm save that the parents shall forgo time on their birthday when exercising time pursuant to 2.3 hereof;
(j)That the parent who would not otherwise have the child on his birthday pursuant to these Orders shall spend time with him from 4.00pm to 8.30pm.
(k)That the week about arrangement referred to in 2.2 hereof shall be suspended during holiday time referred to in 2.3 and 2.4.
That changeover shall occur at the child’s school if a school day and at the home of the parent who has had the child if not a school day.
That the child commence his primary school education in 2010 commencing at Prep School or Grade 1 (as agreed between the parents) at the [N] College but in the event he is unable to attend such school then [B] School.
That both parents shall inform the other of any significant events in the child’s life and both parents shall notify the other immediately in the case of an emergency concerning the child.
That both parents keep the other informed of their respective residential address and contact telephone number (either a land line, mobile telephone or both if parents have both connected) and shall advise the other parent within 48 hours of any change occurring.
That this order operates as an authority for any professional care provider of the child (whether a school, doctor, hospital or otherwise) to release any information concerning the care, welfare and development of the child to both parents. Should either parent seek any documentation in relation to the child (including but not limited to school notices, school reports , school photograph order forms and medical and other professional reports ), that parent shall be at liberty to do so, with the parent seeking any documentation to be responsible for any expenses involved.
That both parents be at liberty to attend parent teacher interviews and all other activities which a parent would ordinarily attend at school.
That both parents keep the other informed of any medical and or other professional treating the child.
That all previous orders relating to the said child be discharged save for Order 3(d) of the Orders made 4th October 2007 which is discharged as and from the commencement of school in 2010.
That the Mother establish a Communication Booklet to pass with the said child at changeover at all times to be utilised by the parties for the health and welfare of the said child and for no other purpose provided such Communication Booklet remain intact.
OVERSEAS AND INTERSTATE TRAVEL
That the Mother and Father do all acts and things and sign all documents necessary to enable the mother to obtain a passport for the said child and once the Mother receives the duly executed passport for the said child, she deposit the passport with the Family Court within forty-eight (48) hours of it being issued provided that the costs associated with obtaining such passport be shared equally between the parents.
That each parent be at liberty to travel with the said child overseas conditionally upon:
(a)Each parent cooperating with the other and on request to deliver or execute any other document necessary to facilitate the said child’s travel including but not limited to the said child’s passport, immunisation records, Birth Certificate and the like;
(b)The travelling parent provide to the other parent not less than three (3) months’ written notice of his/her intention to travel overseas with the said child and the country they intend to travel with the said child;
(c)The travelling parent providing the other parent with proof of prepaid return flights, a copy of his/her itinerary, including but not limited to departure and return times and dates, flight details, contact telephone numbers for the travelling parent and the said child and at the address which he/she will predominately be based not less than one (1) month prior to the schedule departure date for overseas travel;
(d)Whilst the said child is travelling overseas, the travelling parent facilitate telephone communication at all reasonable times but not less than one occasion per week, on a day and time as agreed between the parties;
(e)The return of the said child’s passport to the Family Court within seven (7) days of completed travel.
IT IS NOTED that publication of this judgment under the pseudonym Farland & Farland is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 7305 of 2008
| MR FARLAND |
Applicant
And
| MS FARLAND |
Respondent
REASONS FOR JUDGMENT
Ex tempore
This is an application for final parenting orders in respect of one child, [X]. [X] has two parents who love him very much but in my view, they cannot see the wood for the trees. They say all of the right platitudes but neither act in the way in which one would expect them to act if they really understood what it was that they were saying.
Both of these parents have attended on a parenting orders program, or a post-separation parenting course and the mother, in one of her affidavits, gives extensive evidence of the things that she says she learned from the course. If she indeed learned those things, and could apply them, then in my view she would not be here. It is as simple as that.
It is one thing to pay lip service to the notions that the mother expresses in her affidavit, it is another thing to, in fact, understand them and for the parties to understand the potential for grave affect upon their son of this conflict.
The mother seeks orders whereby [X] would be with his father each weekend, in one week from Friday afternoon to the following Monday afternoon and then in the next week, from Friday afternoon until Tuesday morning. That way, his mother says, he will spend seven out of every fourteen days with each of his parents. His father seeks orders that [X] live with his parents week about with changeovers to occur on a Friday afternoon. The mother’s orders are set out in her outline of case filed on 1 October, 2009 and the father’s in a document handed up at the commencement of the trial.
In my view, these are two parents who simply want their own way. The evidence of each of them gives that away. Neither was an impressive witness. The father could not answer a straight question with a straight answer but rather was at pains to ensure that he gave an answer which best suited his case. He needed to be directed to answer very simple questions on a number of different occasions. The mother was no better. She was argumentative and, again, at pains to put across her side of the story irrespective of the question that was asked of her. Neither was an impressive witness.
Both sets of affidavits relied upon by the parties, again, do not really assist in this case. They are replete with reference to the parties’ beliefs and feelings without setting out in any way, shape or form the facts upon which those beliefs and feelings are based. The Court is not here to make parents feel good about themselves and to vindicate their beliefs. The Court is not here to take into account parents feelings unless to do so is relevant to a consideration of the matters that bear on the best interests of the child or children the subject of the proceedings. The Court is here to make an order which is in the best interest of their child, having regard to the statutory structure set out in the Family Law Act 1975 and the evidence before the Court.
Section 60CA makes it clear that the Court can only make an order which is in the best interest of children and section 60CC sets out how the court determines what is in a child’s best interests.
Section 61DA deals with the incidence of parental responsibility. Section 61DA(1) obliges the Court to presume that it is in the child’s best interest for his or her parents to have equal shared parental responsibility for that child. Both parties here agree that there should be an order for equal shared parental responsibility. How in practice that is to work I am not sure given the evidence before me. There is little trust between the parties. By way of example, the father does not accept what the mother tells him about the medical advice she has been given concerning [X]’s need to have his tonsils removed. The father could not see his way clear to make an appointment with the child’s doctor or doctors to confirm the diagnosis and recommendation about a tonsillectomy, something which I find extraordinary.
Similar comments can be made about the mother. There is a dispute in this case about the school to which [X] shall go next year. The father sent her a list of preferred schools. There was one in particular that he favoured. She did not bother to go and see the father’s preferred school, simply dismissing it out of hand as unsuitable.The evidence of both parties, in my view, makes it very clear that they have no interest in doing anything other than what it is that they each respectively want to do, without regard for the views of the other.
To return to the statutory structure, I have some hesitation about making an order for equal shared parental responsibility, because both parties seem to acknowledge that there is difficulty in their communication. [X] is only five. What will happen when these parties will have to make decision about [X]’s future? – for example subject selections at school (that is a little way down the track), sporting selections (which might occur sooner rather than later), medical attendances and school excursions. The list goes on and on and on.
What will they do if their communication is such as it is now? Can the requirements of s.65DAC(3)(a) and (b) be met? Will they be able to consult with each other about major long-term issues concerning [X]’s welfare and come to an agreement about those issues? At the very first hurdle they have faltered. They cannot even agree on his school. For those reasons I have some concern that an order for equal shared parental responsibility is appropriate.
There, perhaps, are some reasons to be a little optimistic however. As I said, I have no doubt these parents love their son and although the father was not asked questions along these lines the mother certainly was of the view that [X] loved his Dad and enjoyed spending time with him. The very fact that these parties have been able to understand that [X] should spend as much time with each of them as is possible gives hope that they might in the future improve their communication skills and to be able to exercise their parental responsibility for [X] as the Act envisages that it might be. I will make an order for equal shared parental responsibility despite the hesitation that I have already expressed.
There is no question in this case about the time that [X] should spend with each of his parents in terms of its quantity. The real question is how it ought to be arranged. That issue, together with the other issues that have been argued, school and some other minor issues about holidays and the like, nonetheless need to be decided according to the framework set out in the Act.
Section 60CC deals with primary and additional considerations. The primary considerations in this case are not in issue. I can gloss over them. Neither party suggests that there is no benefit to [X] in having a meaningful relationship with the other parent. Neither party suggests that [X] is at risk of harm – physical, psychological or emotional - by reason of being exposed to neglect or family violence.
No question in a real sense of [X]’s wishes arises in this case. Even if there was a reliable expression of his interests in the evidence, his age would militate against providing those wishes with any significant weight.
To some extent it might be said that the mother’s case hinges upon [X]’s wishes. She says in her trial affidavit, and she repeated it in cross-examination, that [X] has become unsettled, in particular, on one occasion when changeover took place following a hospital visit rather than what was ordinarily done. To the extent that it might be said that that represents a statement of his wishes it is not something upon which I can place any weight, because the episode itself is ill-defined in the evidence and there could be any number of reasons why there was upset for [X] on that particular occasion. The issue simply was not explored in any fulsome way in the evidence.
There is no question of the nature of the relationships between [X] and his mother and his father. There is no suggestion that any other particular relationships that [X] might have with other members of either party’s extended family are important in this case or are in issue.
The real issue, as I have said, is how his time ought to be arranged. There are previous orders in this case. Orders were made in 2007. It is only 2009 and the parties are back in Court. On their face, things do not auger well for [X].
Both parties agree that the orders made in 2007 ought to be changed and neither party sought to agitate a Rice & Asplund type argument. I raise that issue because of the way in which the mother’s submissions were framed. It was said by her and on her behalf in submissions that the current orders are sufficient and that no reason has been demonstrated in the evidence for there to be a change.
In my view, that is the wrong test. The test is what are the best orders that can be put in place for [X] having regard to the evidence? What orders are in his best interests? To approach it in any other way is to really revert to the suggestion that there is a status quo and that there is some onus on one or other of the parties to demonstrate some fact that means that the status quo ought to be set to one side.
So what orders will best suit [X]? In my view, there are some benefits to the current orders remaining in place, primarily that identified by the mother. That is, [X] is still a child of tender years, routine is important and this is his routine. One can understand the logic of that argument.
On the other hand, there are benefits in the father’s proposal and it seems to me that without the benefit of any other evidence on the point, the benefits for [X] that would flow from the father’s proposal are these. First, a more fulsome inclusion in the [X]’s day-to-day life of his father, something which the Act specifically recognises as important for children. See the definition of substantial and significant time in section 65DAA(3). Second, the father’s proposal would provide an opportunity for [X] to spend time on a weekend with his mother. The parties should note that I am not approaching my reasoning from their point of view, not what the mother would like or what the father would like, but what is in their son’s best interests and what opportunities and benefits each of their proposals presents for him.
There are benefits each way. Ultimately, it is a balancing exercise. The benefits from the father’s proposal might not be realised at the outset. That is because [X] is not yet at school and so if the father’s proposal was put in place now it would mean that there would have to be other arrangements put in place for [X]’s care while the father was at work. That would introduce not only a change in the overall living arrangements for [X] but a change in care arrangements in a more general sense. Moreover, it would mean, I think, that [X]’s time with his mother might necessarily be interrupted in a practical sense and that time replaced perhaps with care by a third party. Mr Hodges put it in submissions as “day care”.
For those reasons I think that to implement the father’s proposal now might cause more disruption than is in [X]’s best interests. But once [X] starts some form of formal education the benefits that would flow from the father’s proposal would, in my view, outweigh the benefits to be gained from the mother’s proposal.
For those reasons it seems to me that what should happen is that the current arrangements should remain until the commencement of the upcoming Queensland gazetted school holidays and thereafter the father’s proposal for holiday time and then week-about with changeover to take place each Friday upon the commencement of school in 2010 should be implemented. That will keep the disruption, I think, to a minimum, but at the same time provide [X] with the opportunities that I have identified in these reasons for time in his father’s household and time with his mother in his mother’s household which will include weekend time.
I prefer the father’s Christmas holiday proposal because it will permit [X] to travel for an extended period with either parent should they wish to do so over their half of the long break. The orders sought by the parties contemplate travel and so it would seem unduly restrictive if that travel necessarily had to be confined to one week periods as it would have to be (absent any other agreement between the parties) if I accepted the mother’s proposal for Christmas holiday time or the sharing of Christmas Day.
In some respects, [X] is a lucky lad. He has two parents who are vitally interested in his welfare. He has two parents who seemingly have the wherewithal to be active and involved members of the community. His father is gainfully employed and intelligent. His mother is planning to enter the workforce herself and she struck me in the witness box also as an intelligent person. And so the arrangements which I propose to put in place for his time between them will expose him as much as possible to the benefits that they are able to bring to their parenting of him.
It was not suggested in the course of submissions that any of the other section 60CC factors might be relevant to a determination of the issues before me. No question of practicality arises, because the parties live and, it seems, perhaps, even work close enough for the proposed arrangements to work.
That brings me to the last of the major issues to be decided in this case and that is to which school [X] should go. There is a real contest in this case about where that should be. Mr Cooper, in submissions, for the mother put the case as high as it could possibly be put for her. He submitted that the choice of school really would be a function of the parenting arrangements that are in place for [X]. If the current arrangements were to remain while [X] was at school, then a school that was closer to his mother’s place might be appropriate. As it is, the order will be for a week-about at the end of 2009 and so a school which is more equally distant between the parties is probably appropriate. Thankfully, both parties suggest that [X] should continue to go to the same school on their respective weeks, something which, although we might all take for granted, some people do not.
The question then is which school. The mother says that a school nearby her, [M], I think it is called, is appropriate. The father says [B] School is the best school that he has found, and he has looked at some. The father’s assessment, as I discussed with Mr Hodges during the course of submissions, is a subjective assessment. For that reason I approach it with caution, and to consider the assessments themselves, or the categories of assessment against which the father rated each school is to highlight, it seems to me, the subjective nature of his assessments. Cleanliness, staff helpfulness, friendly atmosphere, all matters which are, I would have thought, highly subjective.
That is not intended to be critical of the father. The father, in my view, is devoted to [X] and to his education and perhaps recognising how difficult it is for this issue to be determined, has attempted to gather as much evidence as he possibly can and to make an informed decision about which school will suit [X]. His efforts in that respect deserve some credit, but it does not detract from the subjective nature of his assessments.
Mr Hodges made the point, with some merit, I think, that as against that, is the mother’s case. The mother’s case is much less researched, much less thoroughly presented, and it strikes me – and I have already remarked about this – as extraordinary that having been alerted to the fact that the father’s primary choice was [B] School, she has not bothered to investigate that school. She says she knows about it, but on her own evidence that knowledge is second-hand. She knows that it is on a main road. I am not sure that that really is a disadvantage for a school, the fact that it is on a main road. In fact, some people might see that as an advantage. In my view it is a neutral factor one way or the other.
During the course of submissions, I toyed with the idea and mentioned to counsel the idea of choosing a school which neither party contended for in any serious way, and in particular, one of the two schools that seemed to be in evidence – maybe it is only one, I am not sure, at [N]. Historically, there may have been an agreement between the parties that the [N] School should be chosen, but there is a suggestion that [X] would be ineligible to attend there because both parties live outside the relevant catchment. The evidence on that score is unsatisfactory. It simply seems to be some form of hearsay. It is hard to tell whether it is first, second or third hand, in the father’s affidavit material.
Having regard to the evidence about the school, and having regard to the parenting orders, and in particular the time orders that I have already indicated I am prepared to make, it seems to me that the school issue should be resolved in this way: [X] should attend the [N] School in the event that that school is prepared to accommodate him. In the event that he is unable to be accommodated at that school because the school has a catchment policy which is inflexible and which will not permit [X] to attend there, then he should attend [B] School.
In my view that represents a just outcome in this case that is in [X]’s best interests. It reflects the parties’ original agreement. It takes into account the fact that there might be policy considerations which prevent [X] from attending there, something that I am not satisfied on the evidence in fact exist, but it would be pointless making an order that he attends there, only to have the school say that he could not. So it provides the opportunity for that to be ascertained and in the event that he is not able to be enrolled at [N] School, by whatever name it might be called, then he can attend [B] School.
In relation to the other issues, there seem to be really no other issues save for perhaps the question of whether interstate travel ought to be included in the orders that the mother seeks about travel arrangements. I accept the submissions of the father, that there does not need to be any particular orders about interstate travel. The holiday contact will follow the father’s orders, that is, half of each school holiday period will be spent with each parent on a rotating basis in accordance with the father’s orders.
There are a number of consequential orders contained in the mother’s outline of case, none of which it seems to me are controversial. In particular, I refer to paragraphs 13, 14, 15, 16 and 17 – 17 is by agreement. None of those orders seem to be particularly controversial, and to some extent they overlap with some of the orders that the father seeks in his minute of orders, and in particular 5, 6, 7 and perhaps 8.
In those circumstances, what I propose to do is to stand the matter down so that the parties can produce an agreed minute of orders which reflects the reasons that I have just pronounced.
There will be an order in terms of the minutes that have been initialled by me and placed with the papers. They are not consent orders, of course, but have been prepared by the parties following the delivery of reasons.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Associate: S. Haysom
Date: 19 November 2009
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