Fazio and Donato
[2009] FMCAfam 916
•3 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FAZIO & DONATO | [2009] FMCAfam 916 |
| FAMILY LAW – Parenting dispute – entrenched poor interpersonal relations between parents – issues as to sole parental responsibility – issues as to changeover. |
| Family Law Act 1975, s.61D(a) |
| Goode v Goode [2006] FamCA 1346 |
| Applicant: | MR FAZIO |
| Respondent: | MS DONATO |
| File Number: | MLC 7327 of 2008 |
| Judgment of: | Burchardt FM |
| Hearing dates: | 10 & 16 June 2009 |
| Date of Last Submission: | 16 June 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 3 September 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr M. Grant |
| Solicitors for the Applicant: | Campbell & Shaw |
| The Respondent: | In person |
THE COURT ORDERS THAT:
The parents have joint parental responsibility for the children [X] born in 1997, [Y] born in 1999 and [Z] born in 2001 (“the children”).
The children continue to be engaged in a counselling relationship with their present counsellor.
The children live with the mother.
Until the father’s completion of the post-separation program the children spend time with the father:
(a)on the last weekend of every month from 6.00 pm Friday until 6.00 pm Sunday save where the following Monday is a public holiday in which case time will cease at 6.00 pm Monday;
(b)for half of the school term holidays being the second half, commencing 6.00 pm on the middle Saturday of the September 2009 school holidays and concluding at 6.00 pm on the following Sunday;
(c)during the long summer vacation for two (2) weeks, these two weeks being the first week after New Year and the second last week of the holidays;
(d)from 12 noon on Christmas Eve until 12 noon on New Year’s Eve in alternate years, commencing in 2009;
(e)by telephone:
(i)between 7.00 and 7.30 pm on Tuesdays and Thursdays;
(ii)at any time as the children may desire; and
(f)upon completion of the father’s post-separation parenting program in lieu of the time set out above on each alternate weekend from 6.00 pm Friday until 6.00 pm Sunday with the same order in respect of Monday public holidays, commencing on 9 October 2009, subject to compliance by the father with Order 6 below.
The father engage in short term psychotherapy with an agency such as Relationships Australia in an attempt to deal with the psychological impact of his separation from the Respondent.
The father and the mother each undertake a post-separation parenting program and that those conducting the programs be permitted to put questions to the report writer Ms Owen should they feel such to be appropriate. The father is to forward to the mother by registered mail a copy of his certificate of completion of the program.
Changeover will occur:
(a)during school term times:
(i)upon commencement at [H] general store; and
(ii)upon return of the children at the [A] roadhouse; and
(b)during school holidays all changeover will occur at [A].
In the event that any of the children sustain injury or illness warranting medical attention the mother or father will notify the other party as soon as practicable.
The mother forthwith authorise the children’s school (or schools as the case may be) to forward to the father copies of all school publications, school reports and school photographs at the father’s expense.
The weekend spend time regime provided above be suspended during school term vacations and long term summer vacations.
The father be at liberty to attend school extra curricular and sporting activities of the children should he desire to do so.
The father make every effort to ensure that [Z] sleeps in her own bed when she is with him.
The parties be restrained themselves or by their servants or agents from:
(a)denigrating one another in the presence of the children; and
(b)from discussing matters relating to Family Court proceedings with or in the presence of the children.
AND THE COURT NOTES THAT:
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Fazio & Donato is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 7327 of 2008
| MR FAZIO |
Applicant
And
| MS DONATO |
Respondent
REASONS FOR JUDGMENT
Introductory
This is a dispute about three children. [X] was born in 1997 and is now twelve (12). [Y] was born in 1999 and is ten (10) and [Z] was born in 2001 and is eight (8).
The father was born in 1945 and is sixty-four (64), and the mother was born in 1959 and is forty-nine (49).
Cohabitation between the parents began in 1996, at which time the parties lived in the father’s house in [B]. Separation took place on
20 February 2006 when the mother moved to [W].
Later in 2006, the mother re-partnered with Mr W with whom she continues to live.
In 2008, the mother and Mr W moved to a property at [C], which is some distance outside [W] and, therefore, further from the father.
The father has a holiday home at [D] but still lives predominantly in [B].
Interpersonal relations between the two parents are extremely poor and the relationship between Mr W and the father is, likewise, very bad.
At this point, I turn to follow the statutory pathway indicated (albeit in the context of an interim case) in Goode v Goode [2006] FamCA 1346 at [82].
I note in passing that the position initially adopted by the father was to accept orders in accordance with the proposals contained in the family report prepared in this case, but that apparent concession was withdrawn when the mother did not accept it.
I note further that in this difficult case the Court has had the assistance of a particularly helpful recent family report. The views of the report writer are largely reflected in the draft orders proposed by the Court.
Competing Proposals
The father’s proposal in respect of the children spending time with him is each alternate weekend, half the school holidays (with the weeks varying each year) and two non-consecutive weeks in the long summer vacation, being the first and third weeks.
He also seeks that the children spend from Christmas Eve to New Year’s Eve with him each alternative year, together with Father’s Day and Mother’s Day and birthdays being shared between the parties.
The mother’s proposal is that no time be spent by the children with the father at all until he has completed a post-separation course and therapy in accordance with the recommendations of the family report. Once that is achieved, she seeks that time be spent by the children with the father on the last weekend of each month.
She proposes that the holiday time should only be spent after the father’s treatment is completed and on two weeks’ notice for half of the school holidays. She proposes that in the long vacation and at Christmas, there be only two weeks’ time spent with the father in total.
Changeover is another area of dispute. The father proposes [A], which is roughly halfway between the parties, and points out that although his part of the journey would be slightly shorter, he has to drive in the city.
The mother’s proposal is that changeover take place at commencement at [H], close to where she lives, and that return should be at [D], which is still closer to the mother than [A].
Insofar as telephone contact is concerned, the father proposes that there be time with the children on Tuesday and Thursday between 7.00 and 7.30 pm, and that whenever the children wish to they should be entitled to phone him.
The mother opposes prescribed times for telephone access. Telephone contact should take place at any time the children decide.
Insofar as counselling for the children is concerned, this is sought by the father in accordance with the recommendation of the report writer. It is not opposed by the mother but she raises the question of costs of such counselling and certain practical issues as to the time it would take.
The father seeks that there be testing as to the mother’s alleged alcohol problems, and the mother opposes such a course.
Insofar as school materials are concerned, there is a minor issue as to payment.
Insofar as joint parental responsibility is concerned, the father proposes joint parental responsibility but the mother suggests that there should be joint parental responsibility between the parents but, additionally, with Mr W and the maternal grandmother.
Issues in Dispute
The short point here is that almost everything here is in dispute. The major issues include:
a)the father’s capacity to care for the children (both in the sense of attending properly to their safety and in terms of making it interesting for the children) and the children’s desire to see him (at present they do not generally wish to do so);
b)changeover and the interrelated issue as to whether the mother, in fact, as she asserts, is in employment;
c)the mother’s alleged alcohol dependence;
d)telephone arrangements;
e)the vilification of the father by the mother and Mr W; and
f)inappropriate efforts by the father to use [Z] as conduit of information, the interrelated issue of the father allegedly insulting the mother and her family, and the question of [Z] sharing the father’s bed.
Findings of Fact
There is clearly enormous interpersonal hostility between the parties. This was palpable from their demeanour in Court and from what they said.
According to the mother, the father is 95 per cent to blame for these problems. She could not say there was anything good about the children seeing the father, except that they might, while seeing him, see some of their friends and some of the father’s family. The mother said that the children do not like seeing the father and said “their wishes should be adhered to.”
The mother referred in her evidence to the father, on a number of occasions, as “their biological father”.
I have no doubt that she seeks to promote Mr W as the children’s father figure. After all, she seeks that Mr W share parental responsibility.
Nonetheless, the mother admits that the children have friends in [B] as well as where they live at [C], even though the children are said by her to want to see their friends closer to home instead of those they might see when they are with their father. The mother opposes that the children remain with their father on public holidays which conjoin time spent with him and says that the ordinary weekend is enough.
The mother says she has a job [in the transport industry] and has been so employed since March 2009. This, she says, employs her from 7.30 until 9.00 in the morning and 3.30 until 5.00 pm, Monday to Friday.
Mr W is not employed and cannot drive for any distance owing to medical problems.
During school holidays, self-evidently, the mother does not work, by and large, although there is some prospect of charter work.
The mother says that the father has described people who live in [C] as “bogans” and “idiots”.
The father says that Mr W called him a “lowlife” while on the phone.
I accept all these assertions as to insults have occurred. As I have said, the dislike of these parties for each other was palpable even in Court.
I accept further and find that the mother seeks to alienate the children from their father, whether consciously or otherwise. In this, she receives some unintended assistance from the somewhat over-rigid responses that the father has given to the children from time to time.
It is sufficient to say in respect of the evidence generally that I have found the family report by Ms Owen insightful and accurate, and I accept her analysis in its entirety.
In the light of that latter finding, I move to the various issues.
Joint Parental Responsibility
This is recommended for the father and mother by Ms Owen and I accept that this should be the outcome.
Endeavours by the mother to include Mr W and the maternal grandmother as having joint parental responsibility show her hostility to the father and a disturbing lack of insight. I note Ms Owen’s views in this regard (see paragraph 35 of her report).
Thus, the presumption in section 61D(a) of the Family Law Act 1975 does apply and in the circumstances in this case, in my view, it is not rebutted.
Equal Time
While I am obliged to consider equal time, neither party has sought it and it is plainly not appropriate in those circumstances.
Substantial And Significant Time (Section 66D(A)(3))
Once again, neither side has proposed this. Given where the parties live, it is clearly impractical and should not be ordered.
Establishing What Orders Are In the Children’s Best Interests, Bearing In Mind the Issues in Section 60CC
I will take the issues in the order in which they are contained in the recommendations in Ms Owen’s report.
Counselling is recommended for the children in paragraph 75 of
Ms Owen’s report. In the circumstances disclosed by the evidence and as indicated in Ms Owen’s report, I have no hesitation in agreeing with that recommendation and will make that order.
Ms Owen also recommends (paragraph 76) that the father undergo a post-separation parenting program. The mother wants this and the father does not oppose it. I will order such attendance and in my opinion it is appropriate also that the mother attend such a course. She also needs assistance to cope with the after-effects of the breakdown of the relationship. I will permit those conducting the course to put questions to the report writer should that be felt appropriate.
On the time spent issues, Ms Owen offers conclusions at paragraph 77. In general terms, I accept the proposals put forward by Ms Owen. It is clear that both parties have work to do in the best interests of the children to ensure that the children have the benefit of the relationship with their father that I am determining should occur. The father must take on board the children’s views as expressed to Ms Owen and Ms Owen’s views onboard. So too should the mother. I will adopt the regime set out in paragraph 77 of Ms Owen’s report, save that the long summer vacation time with the father will be the first week after New Year and the second last week of the holidays, (ie the third week after New Year).
This will give the children the week up to Christmas with the mother to settle down and then time with the father, being one or two weeks, and the last week of the holidays back with their mother.
Christmas will alternate, starting next year with the father. As I understand it (the evidence is somewhat unclear) he has after all missed spending Christmas time with his children in recent years. He certainly missed out last year.
The issue of handover has been vexed. The mother does work and I fully accept her evidence that she is in employment as she has described. The mother’s evidence about her employment is inherently credible and was given with conviction. The father, on the other hand, is retired.
I accept that the mother finishes work at 5.00 pm and that changeover should take place at [H] as a result. There is no other practical outcome.
I accept that this means that the father will have to spend Friday nights at [D] and that this limits his time at [B], but in the circumstances of this case, that is unavoidable.
It is not in the children’s best interests that their mother lose her job, and I accept that Mr W cannot drive.
The return changeover should, however, occur at [A]. It is fair to share the burden and, in my view, the children’s best interests will be promoted by the imposition by the Court of a result that is fair to the parties. There is no evidence as to the finances of either party and as to their capacity to pay for the petrol of driving these distances and the fact is that the return changeover will take place on Sunday in circumstances where there will be sufficient time for the mother to get the children home, albeit slightly later than would otherwise be desirable.
If I were to order return changeover at either [D] or [H], the reality would be that the children would not receive the benefit of spending a preponderant part of the Sunday with their father. In my view, that deficiency outweighs the practical problems that may be attended by a return changeover at [A].
During school holidays, all changeovers should occur in [A], as the mother will not be working at the times that the regime I put in place operates.
I then considered the spend time regime after the father’s program is complete. That is dealt with at paragraph 79 of Ms Owen’s report.
I accept Ms Owen’s recommendation, but would add that the time be extended where the Monday is a public holiday. This will give an occasional more substantial time which I think is desirable as their relationship, hopefully, improves with their father.
I emphasise that the relationship between the father and the children is important. It is clear that the mother is not likely to foment or promote it. I do not accept the mother’s criticisms about the children’s safety. The father impressed me as being, in the main, a level-headed and sensible person who loves his children. He is not likely in my opinion to expose them to danger.
Psychotherapy is proposed by Ms Owen in paragraph 80 of her report, and that is not really opposed by the father, and I will make that order.
In the event that any one of the children sustains injury or illness requiring medical attention, I will order the parties to notify one another as soon as practicable. That in my view is preferable and more in the children’s interests than imposing some arbitrary time limit as the mother sought. Such occasions are always likely to be stressful, and the proposition that a party might find themselves in contempt of the Court’s orders because they inadvertently overlooked a time limit under such circumstances is inherently undesirable.
As to the question of the wife’s alleged alcohol dependence, I do not see it necessary to make orders for further testing of the mother’s alcohol use. Her liver function test is clear. She drives [omitted] from Monday to Friday, which requires a zero per cent reading.
I note further that the mother handled the difficult process of appearing in Court well, and in my view if she can stay off alcohol long enough to get a clear liver function test, the idea that she is incapable of looking after the children as a result of alcohol problems is far-fetched.
The children have been predominantly in the mother’s care for the last three years and not come to harm. It is not necessary to impose the indignity of further testing as to alcohol upon her.
Information from the children’s school should clearly be provided to the father. I will order that the mother provide written authorisation to allow the father to get school reports and to provide a copy of that written authorisation to him to avoid arguments. If there is any cost involved, which I doubt, the father should pay it.
Telephone contact should be precise. In the context of the poor relationship between the parties in this case, I will make an order that the children communicate with their father between 7.00 and 7.30 pm on Tuesdays and Thursdays and further at any time as the children may desire.
So far as the issues raised by the mother about [Z] being used as a conduit are concerned, it is important to emphasise that both parents should cease involving the children in their dispute. It is difficult to formulate orders to give effect to this proposition, save to order non-denigration of the parties by themselves or their agents, and to order in the standard form that there not be discussion about Court matters.
Nonetheless it should be clearly noted that [Z] is now eight years old and every effort should be made to get her to sleep in her own bed. I will make an order to this effect.
So far as the father’s application concerns Father’s Day, Mother’s Day and birthdays, I take the view that the children should stay where they happen to be on those days. The distance between the parties is so great that it is just not in their interests to be travelling for great lengths of time just for a single day.
Finally, there is no good reason why Mr Fazio should be other than at liberty to attend school, extra-curricular and sporting activities.
I have prepared some draft minutes of orders to give effect to these conclusions. I will give the parties an opportunity to be heard once they have had an opportunity to read these reasons for judgment and the draft orders.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Ms B Evans
Date: 3 September 2009
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