FILIPE & RUDD

[2017] FCCA 1339

FEDERAL CIRCUIT COURT OF AUSTRALIA

FILIPE & RUDD [2017] FCCA 1339

Catchwords:
FAMILY LAW – Parenting – interim – increase in time to overnight time between child and father.

Legislation:

Family Law Act 1975

Applicant: MR FILIPE

Respondent: MS RUDD

File Number: SYC 2312 of 2017

Judgment of: Judge Henderson

Hearing date: 7 June 2017

Date of Last Submission: 7 June 2017

Delivered at: Sydney

Delivered on: 7 June 2017

REPRESENTATION

Counsel for the Applicant: Mr Schonell SC

Solicitors for the Applicant: Michael Conley Lawyers

Counsel for the Respondent: Mr Fowler

Solicitors for the Respondent: Alan J McKimm & Associates

ORDERS PENDING FURTHER ORDER

1. The proceedings be adjourned to 17 November 2017 at 9.30am for directions.

2. The parties attend a Conciliation Conference with a Registrar on 24 July 2017 at 2.15pm.

3. The parties are to file a joint balance sheet at least 7 days prior to the conference.

4. Any documents to be required for the Conciliation Conference may be emailed to [email protected].

5. The child spend time with the father from 11.00am Friday until 3.00pm Saturday, forthwith.

6. From 4 August 2017, the child will spend time with the father from 3.00pm Friday until 4.00pm Sunday and each alternate week thereafter. If this weekend falls on a long weekend the father shall spend time with the child for the entire weekend including the public holiday day, being a Thursday, Friday or Monday every year.

7. If the father has been away for work for a period of 4 weeks or more, and has notified the mother of his return with at least 8 weeks’ notice, then the mother will allow the child to spend time with the father on the first weekend upon his return, which will become the first weekend of the alternate weekend visits.

8. The overnight time outlined in orders (5) and (6) above will not commence until after the father has had his appointment with the child’s specialist at the (omitted) Hospital, which the Court notes is scheduled for 14 June 2017 at 2.00pm.

9. The father is to provide to the mother by email a copy of his work schedule roster within 48 hours of the father receiving his roster.

10. The parents are at liberty to communicate with each other and with the child (when the child is not with the other parent) by telephone, Facetime or Skype, between 6.00pm and 6.30pm on Mondays and Wednesdays. However, if the child’s father is unable to spend time with the child due to his work commitments, then the telephone/ Facetime/Skype time will also include Sundays.

11. The mother will inform the father of the requirements and recommendations in respect of the child’s treatment of haemophilia, as has been provided to her and the father will carry that treatment out.

12. The parents will exchange information about the child’s health and care via email. In the event the child suffers a medical emergency, accident or illness requiring medical treatment whilst in the care of either parent, that parent shall notify the other parent as soon as possible, and provide all the details to the other parent.

13. Both parents are at liberty to contact any medical practitioner the child attends from time to time, and speak to and contact any place of education or extracurricular activity the child attends from time to time.

14. Each party will inform the other of any change to their residential address and/or contact details at least 14 days prior to that event occurring.

15. In relation to the 2017 Christmas school holidays:

    (a)The child will spend time with the father from 12.00pm on Friday 15 December 2017 until 4.00pm on 19 December 2017;

    (b)The child will spend time with the father from 12.00pm on Friday 29 December 2017 until 5.00pm on 2 January, 2018;

    (c)The child will spend time with the father from 12.00pm on Friday 12 January 2018 until Sunday 14 January 2018;

    (d)Otherwise, the child will spend time with the mother during that period.

16. The child shall spend time with both the mother and father during the Christmas 2018 holiday period, as agreed between the parties in writing, and failing agreement by 1 November 2018 as follows (with the provisions of orders (6) and (7) above being suspended during these times):

    (a)With the father from 12.00pm on Saturday 22 December 2018 until 12.00pm on Thursday 27 December 2018;

    (b)With the mother from 12.00pm on Thursday 27 December 2018 until 12.00pm on Thursday 3 January 2019;

    (c)With the father from 12.00pm on Thursday 3 January 2019 until 12.00pm on Thursday 10 January 2019;

    (d)With the mother from 12.00pm on Thursday 10 January 2019 until 12.00pm on Thursday 17 January 2019;

    (e)With the father from 12.00pm on Thursday 17 January 2019 until 12.00pm on Thursday 24 January 2019;

    (f)From Monday 28 January 2019 the child shall spend time with both the mother and father in accordance with the order (6) and (7) above, with the first following weekend period being with the father.

17. If the child is not otherwise spending time with the father on Father’s Day, the child is to spend time with the father from 9.00am until 5.00pm.

18. If the child is not otherwise living with his mother on Mother’s Day, the child is to spend time with the mother from 9.00am until 5.00pm on Mother’s Day.

19. In the event the mother’s birthday occurs on a date that the child is with the father, the child shall spend time with the mother from 10.00am until 5.00pm.

20. In the event the father’s birthday occurs on a date that the child is with the mother, the child shall spend time with the father from 10.00am until 5.00pm. The father will collect and deliver the child in relation to these times he spends with the child.

21. In the event that the father is unable to spend time with the child due to work commitments, he is to notify the mother immediately, and the father’s time will recommence in accordance with the regime of time set out in these orders on the first weekend after his return from his work commitments.

22. In the event the father’s birthday occurs on a date that the child is with the mother, the child shall spend time with the father from 10.00am until 5.00pm. The father will collect and deliver the child in relation to these times he spends with the child.

23. In the event that the father is unable to spend time with the child due to work commitments, he is to notify the mother immediately, and the father’s time will recommence in accordance with the regime of time set out in these orders on the first weekend after his return from his work commitments.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2312 of 2017

MR FILIPE

Applicant

And

MS RUDD

Respondent

REASONS FOR JUDGMENT

1. The matter of Filipe & Rudd is an application by a father to increase time he spends with his son, X, to include overnight time. The father seeks overnight time commence forthwith, one night a fortnight and increase to two nights a fortnight, ultimately. The mother resists any overnight time until June 2018, when X will be four and a half. X is currently three and a half years of age, having been born on (omitted) 2013.

2. Mr Schonell SC acted for the father and Mr Fowler, of Counsel, for the mother.

3. The material I read was as follows:

   a)For the father, his application and affidavit, filed 12 April 2017, notice of risk, case outline and proposed minute of order.

   b)For the mother, affidavit and response filed 30 May 2016 case outline and proposed minute of order.

4. Despite the mother’s assertion that X requires a graduated increase in time before commencing overnight time with his dad, her application does not provide for this graduation of time. The mother seeks a continuation of daytime only for another 12 months, and then one night a month overnight, with some holiday time. That is not a graduated regime of time, as I see it.

5. X has a serious condition of haemophilia, which was diagnosed at age 7 months and, clearly caused these parents particularly the mother who has been effectively his primary and at times, sole carer, considerable distress. The reality is, his mother is a most competent and capable parent who has managed the impact of this condition solely for most of X’s life since his birth, as his father’s position as a (occupation omitted), for (employer omitted), has resulted in his father being deployed for much of X’s life: almost two-thirds of it.

6. These parties commenced cohabitation in (omitted) 2013 and they separated in March 2016. The mother has managed X’s condition expertly. She has undertaken training so that she can administer his intravenous Factor treatment three times a week at home, minimising the trauma of hospital for X. The mother has involved the child in his own treatment, thus making it more a natural, day to day event for him. The mother is vigilant about X’s health, and cautious with him, understandably.

7. X is progressing extremely well in his mother’s care. He attends preschool, where he is flourishing. According to the preschool reports, he is a delightful child, mixes with his peers, reaching well above all his milestones. He spends time with his maternal grandparents. His mother works four days a week to support him. The mother lives in the (omitted) area, and the father in Sydney. The mother has been able to successfully parent her child such that even at a young age he happily and easily separates from her to be with other people, and attend places such as preschool, all to her credit.

8. The mother has a negative view of the father, in that her affidavit speaks of him not supporting her during X’s birth and subsequently, and what she would regard as his disinterest or lack of appropriate concern as to the seriousness of X’s condition. She believes, and she says in her material, that the father does not take X’s medical condition seriously, has not informed himself of the condition and the special needs of his son. However, as I read the evidence from the father, and their mother’s own evidence, it does not support the mother’s concerns or her view of the father.

9. The father has never once interfered with the multitude of decisions the mother has had to make for X in relation to his health. He has followed up with doctors in relation to X’s treatment. He has followed up issues concerning his son’s health. He has made an appointment with X’s specialist in the (omitted) Hospital on 14 June 2017, regarding his son’s needs and treatment. He is intending to do the same course the mother did so he too can administer this important medication to his son, and he has ensured that Dr S from the children’s hospital at (omitted) is informed of X’s treatment, has liaised with X’s specialist at the (omitted) Hospital, so X has expert team of professional medical experts available to him in (omitted) and in Sydney. I accept (omitted) is the hospital most familiar with X and that it is the most familiar environment for X the mother. The evidence supports the father being most desirous to become a major part of and have and have involvement in his son’s life.

10. The mother raised with the Court the following areas of potential risk to her son in having overnight time with his father. They were:

    a)That she is his primary carer;

    b)The father has been an absent parent, due to his work, and the child may suffer in being separated from her overnight with his father;

    c)That the father lacks an understanding of the seriousness of the child’s medical condition, and for example, he has let the child or he has had the child with him on a skateboard without a helmet – which I understand is likely against the law, as well;

    d)The child has been sunburnt twice in his father’s care; and

    e)He did not take the child to hospital, as she directed he did, in a visit in June 2016.

11. Now, dealing with last point first. The mother’s own SMS to the father, the morning of this visit on 12 June, is that the mother said the child’s mouth was bleeding and had been bleeding all night and had not stopped. That it was not urgent; that the father could take him to the hospital when he collected him. The father did take the child to the hospital, at 2 o’clock, at the mother’s insistence, despite him having informed the mother that the bleeding had stopped because he had had given the child an Icy Pole ice block. The father says the staff at hospital gave him the factor injection only because the father insisted it be done, and the father was of the view it was not necessary at that time. The mother herself said it was not a serious issue.

12. To now say that the father was reckless with his son or poses a risk to his son is not made out on those facts.

13. The child was sunburnt in the father’s care, and I am satisfied he will not permit this to occur again. He is a very fair child, with delicate skin, and his father now realises he must protect his son from sunburn by reapplying cream throughout the day.

14. The reality is that the father does take heed of the mother’s opinions. He has never objected to any of the child’s treatments. He has never cavilled with her. He follows through with what he can, and the mother, as I see, is clutching at straws to support her view that these matters would cause me to form the view that the child is at some unacceptable risk of harm in his father’s care for overnight time.

15. X is clearly a very well-adjusted and well attached child to his mother. He can separate from his mum to go to preschool and spend time with her parents. This is all to the mother’s credit. The father says X cries when he has to be returned to his mother, and he is expressing to his father that he is ready to spend lengthier time with his father, including overnight time. The time has been very limited and daytime only, and it has been limited to the area where X lives, in the (omitted) area, because of the limitation of time.

16. The mother insists the father not takes the child out of her area, and is averse to him travelling to Sydney for daytime time. I understand this would be a long trip to and fro for the child on a day. However, because he is only spending daytime, X is limited to the (omitted) area when with his father with all the limitations that causes because the father does not live in (omitted) and near to.

17. This limitation puts a damper on and is an impediment to the father’s capacity to engage meaningfully with his son due to the limited time he spends with him.

18. The father has contacted Dr S, at the children’s hospital at (omitted) and she is aware of X’s needs and she has agreed to work with the (omitted) Hospital, where his mother takes him, in the event that X when with his dad needs to be hospitalised. I see no risk to X in overnight time in his father’s care, and due to his mother’s excellent parenting of him, he will easily transition to overnight time with his father, enjoying the benefit of his extended paternal family, and the enmeshment and the enrichment of time in his father’s care overnight time brings.

19. I accept the mother will be on tenterhooks when X is in Sydney with his father overnight and she is in (omitted) and not with him. However, his father is well aware of his needs and the hospital at (omitted) is also aware of his son’s needs and X will be protected by his father and those protective measures that the mother has put in place for her son will also be available to him in Sydney.

Going to the Act[1]

[1] Family Law Act 1975.

1. There is no reason to rebut the presumption of equal shared parental responsibility. Indeed, to do so would be a risk to this child for if he is with his father and requires hospitalisation, it is an imperative that his father can exercise that legal right and obligation, as can the mother to ensure the best treatment is made available to their son. Therefore, I will make an order that the parents will equally share parental responsibility for their child. It is very important that the father is part of his son’s medical treatment and involved in that.

2. There is no request for equal time, and it would be impractical given the distance between the parents’ home. Significant and substantial time is also a difficulty at this stage, given X’s age and the distance between the parents’ home.

3. I do not see there is a risk of harm to this child in either of his parents’ home, nor has there ever been. Overnight time will begin to establish for X, the benefit to him of a meaningful relationship with his father. This will be a change for X. Sleeping overnight at his father’s home will be different for him than sleeping at his mother’s home. However, as I see the evidence, it is his mother who may likely find this to be the most difficult adjustment to make, rather than her well-adjusted, flourishing child.

4. Both parents are capable of providing for their son’s needs, and are capable and competent people. The father as a (occupation omitted) has far greater skills in first aid and the administration of first aid than most members of the community, and that is an added safety factor for X.

5. It is true, that X’s primary relationship is with his mother. She is his primary carer and his primary attachment. However, he clearly has an attachment to his father as described by the father in his affidavit, and the mother agrees he enjoys his time with his father.

6. I find favour with the father’s regime of time set out in his application, which is that the child will spend time with him from 11 am Friday, to 3 pm Saturday, forthwith.

7. That from 4 August 2017, the child will spend time with his father each alternate week, from 3 pm Friday, until 4 pm Sunday.

8. That overnight time not commence until after the father has had his appointment with X’s specialist at the (omitted) Hospital which, I note, is scheduled for 14 June 2017, at 2 pm.

9. There was some agreement about Christmas holidays which I will deal with later.

10. I will also make the mother’s order regarding notification of change of time: The father has a work roster which can cause him to be away for lengthy periods of time and at short notice, which he cannot really advise the mother necessarily of. However, I will make an order that the father provide to the mother by email, a copy of his work schedule roster within 48 hours of its receipt by the father. It is very important that she have that.

11. The parents are at liberty to communicate with each other, and with X, when he is not with the other parent by telephone, Facetime or Skype, between 6 and 6.30 pm on Tuesday, Thursday and Sunday, and this is a most important order if X’s father is not in the country or is unavailable to spend time with his son. I would concede that if X is spending regular time with his father, then that communication need only be on Tuesday and Thursday. However, if X’s father is unable to spend time with his son due to his work commitments, then the Skype telephone time will also include the Sunday.

12. The mother will inform the father of the requirements and recommendations in respect of X’s treatment of haemophilia as has been provided to her and the father will carry that treatment out.

13. The parents will exchange information about their son’s health and care by email.

14. In the event X suffers a medical emergency, accident or illness requiring medical treatment whilst in the care of either parent, that parent shall notify the other parent as soon as possible and provide all the details to the other parent.

15. Both parents are able to contact any medical practitioner their son attends from time to time, and speak to and contact any place of education or extracurricular activity their son attends from time to time.

16. Each party will inform the other of any change to their residential address, and any contact details, 14 days prior to that event occurring.

17. In relation to the Christmas school holidays, the child will spend time with his father in 2017 /2018;

    a)from 2 noon Friday, 15 December, to 4 pm, 19 December;

    b)from 12 noon Friday, 29 December, until 5 pm, 2 January, 2018; and

    c)from 12 noon Friday, 12 January, to Sunday, 14 January 2018. Otherwise, the child will spend time with his mother during that period.

1. I will make the orders in relation to the 2018/2019 Christmas holidays, as set out in the father’s minute of order, paragraph 9, in the event the Court is unable to deal with this matter to finality by that time, or the parents cannot agree. This was agreed between the parents.

2. If the child is not otherwise spending time with his father on Father’s Day, he shall spend time with him, 9 am to 5 pm.

3. If the child is not otherwise living with his mother on Mother’s Day, he shall live with her from 9 am until 5 pm on Mother’s Day.

4. In the event the mother’s birthday occurs on a date that the child is with the father, the child shall spend time with her from 10 am until 5 pm.

5. In the event the father’s birthday occurs on a date that the child is with the mother, the child shall spend from 10 am until 5 pm with his father. The father will collect and deliver the child in relation to these times he spends with his son.

6. In the event that the father is unable to spend time with his child due to work commitments, he is to forthwith notify the mother immediately, and the father’s time will recommence in accordance with the regime of time set out in these orders, the first weekend after his return from his work commitments.

7. These orders cover the mother’s concerns and X’s needs and I will so order.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date: 20 June 2017