Findlay and Boa

[2008] FamCA 62

FAMILY COURT OF AUSTRALIA

FINDLAY & BOA [2008] FamCA 62

FAMILY LAW - CHILDREN -  parenting orders  -  interim dispute as to mother’s time with child

Family Law Act 1975 (Cth)

HUSBAND: MR FINDLAY

WIFE: MS BOA

FILE NUMBER: MLC 11488 of 2007

DATE DELIVERED: 24 January 2008

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 24 January 2008

REPRESENTATION

COUNSEL FOR THE HUSBAND: Mr R.P. Hutchins

SOLICITOR FOR THE HUSBAND: Wilsons Lawyers

COUNSEL FOR THE WIFE: Ms A.B. Goldsworthy

SOLICITOR FOR THE WIFE: Victoria Legal Aid

Orders

1. That the paragraphs (2) to (4) inclusive of the orders made by the Family Court of Australia at Melbourne on 25 October, 2007 be discharged. 

1. That until further order the parties have equal shared parental responsibility for the child of the marriage … (the child) born … October, 2000.

1. That until further order the child live with the husband.

IT IS FURTHER ORDERED

1. That until further order the child spend time with the wife :

   (a)during school terms :

   (i)from after school on Friday until 8:00 pm. on Sunday in each alternate week, commencing on 25 January, 2008;  and

   (ii)from after school until 8:00 pm. on each alternate Wednesday, commencing on 30 January, 2008;

   (b)for half of all school term holidays at times to be agreed, and in default of agreement, the first half;

   (c)on a week-about basis during the long summer school vacation commencing on the Friday which falls one week after the last alternate weekend time pursuant to paragraph (4)(a)(i) hereof;  and

   (d)at such times as are agreed on Christmas Day. 

1. That until further order the wife be at liberty to attend all the events, activities and functions at the child’s school which are routinely attended by parents. 

1. That within fourteen days hereof the wife file and serve a response to the application filed by the husband on 18 October, 2007. 

1. That the report of Mr. V dated 21 January, 2008 be indexed on the court file. 

1. That the applications for final parenting orders be referred to the pool of cases awaiting directions for trial.

1. That pursuant to s.62B and s.65DA(2), 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, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

1. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

AND THE COURT NOTES  (at the request of the parties)

A. That the parties agree they will not allow any other person to discipline the child.

B.That the parties agree they will not expose the child to any form of illegal activity involving animals fighting.

C.That the parties agree that in the event of the wife relocating to live within the western suburbs area, the parties will consider moving to the parting arrangements recommended in the Family Report dated 21 January, 2008 by Mr V.

D.That the wife does not admit the necessity for notations A. and B.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Brown delivered this day will for all publication and reporting purposes be referred to as Findlay & Boa.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11488 of 2007

MR FINDLAY

Husband

And

MS BOA

Wife

REASONS FOR JUDGMENT

1. The case has a considerable history, predating this set of proceedings, which were initiated by an application filed on 18 October 2007.  In brief compass, the parties met in Vietnam in 1997.  They married in 1998 and their daughter was born in October 2000.  Their intention was to return to Australia to allow the child to commence her primary schooling here.  They separated in August 2004 and were divorced in 2005.

1. After separation, the parties’ arrangements might be described as fluid.  At times the mother was in Australia and at other times she was in Vietnam.  There is some disagreement about that period and the parties’ intentions.  Final property orders were made in 2005. 

1. In September 2007, the wife formed a relationship with another man, and began living with him in the north-western suburbs. The father has lived in the western suburbs, with the child, for quite some time. 

1. Numerous orders have been made.  On 25 October, 2007 Dessau J discharged earlier parenting orders and determined the period of times during which the child was to live with the wife, until further order.  During school terms, the child was to be with the wife from the conclusion of school on Friday until the commencement of school on Monday, or Tuesday if Monday were a public holiday.  Orders were made in respect of the 2007/2008 summer holiday period.  Dessau J ordered that, until further order, the child live with the husband at all other times.  She also ordered that the parties attend upon Mr V, which they have done, and the court has before it a report from him. 

1. The interim dispute before me is relatively narrow.  I make it clear that the parties’ applications for final parenting orders remain on foot, as they do not agree about final orders.  They have agreed that paragraphs (2) to (4) of Dessau J’s orders be discharged, that they have equal shared parental responsibility for the child and that, save for periods to be fixed by me, the child will live with the father, until further order. 

1. As this is an interim hearing, the court cannot make findings on facts which are in dispute and in this case a number of facts are in issue.  In these circumstances the court needs to look, as much as it can, at the more objective evidence, when considering where the child’s best interests lie.

THE LAW

1. The provisions in the Family Law Act 1975 relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).

1. When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration.  In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.

1. There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent.  The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.  The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply. 

1. If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).

1. It is agreed that, until further order, the child will spend each alternate weekend, during school terms, with her mother.  The father submitted the periods should conclude at 8:00 pm. on Sunday night;  the mother that she should be able to take the child to school on Monday morning.  It is also agreed that the child will be with her mother on each alternate Wednesday, after school.  What is not agreed is whether that should conclude at 8:00 pm. on Wednesday, or on the Thursday morning.  The parties have otherwise agreed that, until further order, the child will spend half of school holiday periods with each of them;  during the long summer school holidays, that will be on a week and week about basis.

1. Mr V’s report goes to the parties' applications for final orders, questions relevant to the child’s residence in the foreseeable future.  Aspects of it are clearly relevant to this application for interim orders.  Mr V’s evidence is that the child’s levels of anxiety are “incredibly high”;  those are strong words from a psychologist of Mr V’s experience.  To him, the child conveyed a much greater sense of uncertainty about her mother and her mother's future plans.  The child told him she was not certain whether her mother would live in the north-western suburbs or in the western suburbs.  She was unsure that her mother could get her to school on a regular basis, in the event she did not move from the north-western suburbs.  That was in the context of the viability of a shared residence arrangement and spending more time with her mother than is presently agreed. 

1. To Mr. V, the child conveyed a greater sense of confidence in her father, and in his ability to care for her and make plans for her.  She spoke in unequivocally positive terms about him and his ability to care for her.  She was less decisive about her mother and very concerned about her mother’s welfare.  She conveyed a sense that she did not want to upset her mother, and, while acutely aware of her mother's feelings, a greater sense of dependence, reliance and certainty with regards to her father. 

1. It is clear from Mr V’s report that save for the anxiety, the child is a normal, healthy, happy child.  She is happy at school, has good peer relations and has an unequivocal dependence and reliance on her father.  She does want to see her mother, and to spend time with her. 

1. To Mr V the mother said that if she were not successful in her application for final parenting orders, she was not confident she would move to accommodation in the western suburbs;  she was unable to commit to any plan if she were not successful.  Today, through her counsel, it is put that the mother plans to move to the western suburbs in any event.  I can say nothing as to the timing of that proposed move.

2. Mr. V refers to what might be called the building blocks for resilient children, being consistency, stability and predictability.  At this stage, the child’s relationship with her mother is consistent and stable.  For various reasons, it has been dislocated in the past.  This is not the time to consider the reasons for that.  What is important for the child, to foster her best interests, is a consistent, continuing and certain regime of time with her mother in which she (the child) can have confidence.  That is more important than the specific number of hours they spend together.  

1. The sense one gets from Mr V’s report is that the child is uncertain of the mother's reliability.  That may not be soundly based but it is her perception.  On the other hand, she has absolute confidence in her father. 

1. The child is doing well at school.  School can be a haven for children who are dealing with marriage breakdown and parental separation.  I am satisfied it would be better for the child, in the interim, to be confident that she will go to school from her father’s home, than to have the additional time sought by the mother, for much of which she would be asleep. 

2. I would be comfortable in making an order that the mother be able to attend the child’s school for events, activities and functions routinely attended by parents.  No order prevents that now, but a non-resident parent may feel reluctant to attend the school in the absence of clear authority to do so. 

1. The child’s name is on the watch list;  it will remain there pursuant to the earlier order. 

1. I do not propose to make any notation in relation to the matters the mother raised about the child’s sleeping arrangements at her father’s home.  Counsel was careful to make clear that no allegations of impropriety were raised.  There is nothing in the evidence that would support the need for an order in the terms of the notation sought and no reason to make that notation.

1. The four other notations upon which the parties agree to the orders will be made. 

I certify that the preceding
22  paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.
Dated the        day of         2008.

…………………………………………
Associate.