FINE & EDDINGTON
[2013] FCCA 1313
•11 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FINE & EDDINGTON | [2013] FCCA 1313 |
| Catchwords: FAMILY LAW – Parenting – child almost aged 5 years old – week about arrangement has been in place since March 2011 – whether or not the week about arrangement should be changed. |
| Legislation: Family Law Act 1975 (Cth), Pt.VII, ss.60B, 60CA, 60CC, 60DA, 61DA, 64, 65D, 65DAA |
| Goode & Goode [2006] FamCA 1346 MRR & GR [2010] HCA 4 Akston & Boyle [2010] FamCAFC 56 Korban & Korban [2008] FamCA 292 SCVG & KLD [2010] FMCAfam 641 Waterford & Waterford [2013] FamCA 33 Mazorski & Albright [2007] 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 |
| Applicant: | MS FINE |
| Respondent: | MR EDDINGTON |
| File Number: | DNC 252 of 2012 |
| Judgment of: | Judge Harland |
| Hearing date: | 15 July 2013 |
| Date of Last Submission: | 15 July 2013 |
| Delivered at: | Darwin |
| Delivered on: | 11 September 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Barry |
| Solicitors for the Applicant: | Cecil Black Family Lawyers |
| Counsel for the Respondent: | Ms Farmer |
| Solicitors for the Respondent: | Withnalls Lawyers |
ORDERS
That the parties have equal shared parental responsibility for X born (omitted) 2008 (“the child”).
That during the school terms the mother and father have equal shared care of the child as follows:
(a)Week 1 – with the father from Friday after day-care or school to before day-care or school the following Friday; and
(b)Week 2 – with the mother from Friday before day-care to after day-care the following Friday.
That during the school holidays the child spend the following times with the parties:
(a)With the father in the April/May school holidays in even numbered years;
(b)With the mother in the April/May school holidays in odd numbered years;
(c)With the father for the second half of the midyear and Christmas school holidays commencing 2013 and in each alternate year thereafter;
(d)With the father for the first half of the midyear and Christmas school holidays commencing 2014 and in each alternate year thereafter;
(e)With the mother for the first half of the midyear and Christmas school holidays commencing in 2013 and each alternate year thereafter;
(f)With the mother for the second half of the midyear and Christmas school holidays commencing 2014 and each alternate year thereafter;
(g)With the father in the September/October school holidays in odd numbered years;
(h)With the mother in the September/October school holidays in even numbered years.
That for the purposes of calculating the period of school holidays, the school holidays commence on the last day of the school semester and conclude on the first day of the following school semester.
That orders 2 and 3 be suspended to give effect to the following special days:
(a)That in the event the child is not living with the mother on Mother’s Day that the mother spend time with the child from 8am to before day-care/school the following Monday;
(b)That in the event the child is not living with the father on Father’s Day that the father spend time with the child from 8.00am to before day-care/school the following Monday;
(c)That in the event the child is not living with the mother on the mother’s birthday that the mother spend time with the child from 8.00am to 5.00pm on that day;
(d)That in the event the child no living with the father on the father’s birthday that the father spend time with the child from 8am to 5pm on that day;
(e)With the father for the first half of Easter being from after day-care/school Easter Thursday to 5.00pm Easter Saturday in odd numbered years;
(f)With the mother for the second half of Easter being from 5.00pm Easter Saturday to before day-care/school the following Tuesday in even numbered years;
(g)With the father for the second half of Easter being from 5.00pm Easter Saturday to before day-care/school the following Tuesday in odd numbered years;
(h)With the mother for the first half of Easter being from after day-care/school Easter Thursday to 5.00pm Easter Saturday in even numbered years;
That all changeovers occur at the child’s day-care/school or in the event at McDonalds in (omitted) on a public holiday, pupil free day or during the school holidays or as otherwise agreed between the parties.
That the parent with whom the child is not living with be at liberty to telephone the child at all reasonable times and the parent with whom the child is living with shall facilitate such communication.
That both parties advise the other of any medical or other emergency in relation to the child as soon as practicable.
That both parties shall do all such acts and things and sign all necessary documents as required to facilitate the issuing of the passports for the child.
That each parent be entitled to obtain directly from any school attended by the child, or from any health welfare professional or other professional attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child and for this purpose each parent shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other parent so informed should such details change.
That the parents shall each advise and keep the other parent advised of their respective telephone numbers, being landline number and also including a mobile telephone number and their respective residential addresses and each parent shall within 14 days of any change of either their telephone number or residential address, advise the other parent of that change.
That the parties shall be entitled to take the child interstate or overseas on holidays provided the other party is notified 30 days at least in advance and provides an itinerary with address and phone numbers where the child will be holidaying.
That the parents are hereby restrained and an injunction is hereby granted restraining the parents from denigrating each other within the hearing or presence of the child or allowing anyone else to do so.
That pursuant to section 13C of the Family Law Act 1975 the parents undertake and complete the ‘For the Kids’ parenting program at (omitted) as follows:
(a)Each parent, within seven (7) days of the date of these Orders, are to contact (omitted) on (omitted) to enrol in the parenting program;
(b)The parents are to attend all sessions and comply with all reasonable directions of the program providers;
(c)At the conclusion of the program each parent shall provide the other parent with a certified copy of the certificate of completion.
That pursuant to section 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 are set out in Attachment A and these particulars are included in these orders.
NOTATION
A.That orders (1), (3), (5), (7) – (13) are made by consent.
IT IS NOTED that publication of this judgment under the pseudonym Fine & Eddington is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
DNC 252 of 2012
| MS FINE |
Applicant
And
| MR EDDINGTON |
Respondent
REASONS FOR JUDGMENT
Introduction
The mother filed an initiating application seeking parenting and property orders on 25 June 2012. The parties resolved the property issues by consent on 10 December 2012.
The parties were in a de facto relationship from (omitted) 2001 until September 2010. There is one child of the relationship X born on (omitted) 2008. He will be 5 in September this year.
Initially the mother sought to relocate with the child to Adelaide. To her credit after the mother read and considered the family report she decided not to relocate. The matter proceeded to hearing with respect to the time X should spend with each parent.
The parents and the mother’s partner were the only witnesses in the case. Neither parent required the family consultant for cross-examination.
Background
The mother was born on (omitted) 1981. She is 32 years old. The mother lives in rental accommodation. In (omitted) 2011 she formed a relationship with Mr S. He is a (occupation omitted) and at the time he was living in country Victoria where he has three children living and Adelaide. In early 2013 Mr S moved to Darwin to live with the mother.
The father was born on (omitted) 1972. He is 41 years old. He lives in the former matrimonial home and he plans to live there for the foreseeable future.
The parents live at (omitted). It is a small community. They often run into each other on the ferry going to and from work. X is often with one of them.
It is a long drive from (omitted) to Darwin city but it is a relatively quick ferry ride. Both parents work in the city. The mother wants to move to a suburb in Darwin. She has not settled on where.
The Mother’s proposal
The mother relied on her affidavit sworn 2 July 2013 and the affidavit of her partner Mr S sworn on 5 July 2013.
The mother sought orders that would reduce the father’s time with X to 4 nights a fortnight. She agreed with many of the father’s proposed orders.
The mother’s case outline referred to several cases which were not referred to in oral argument. In addition to Goode & Goode [2006] FamCA 1346, MRR & GR [2010] HCA 4, the cases of Akston & Boyle [2010] FamCAFC 56, Korban v Korban [2008] FamCA 292 and SCVG & KLD [2010] FMCAfam 641 were listed. The reasons for referring to Goode & Goode and MRR & GR are clear in any parenting case. However counsel should refer to the relevance of other cases in oral submissions.
The Father’s Proposal
The father relied on his affidavit sworn on 9 July 2013. He seeks orders that would see the equal shared care arrangement remain in place.
Agreed Facts and Issues
From the time the parties separated in September 2010 until March 2011 X spent substantial and significant time with both parents in a 4/3 arrangement. Since March 2011 X has been living in an equal shared care, week about arrangement.
The parties agree that they should have equal shared parental responsibility.
The Issues in Dispute
The only issue in dispute is whether or not the equal shared arrangement for X should continue.
The mother raises various concerns about the father to support her application to have primary care of X.
She says that she has always been concerned that the equal shared care arrangement is not in X’s best interests. She lists her reasons as being:
a)She and the father don’t get on and can’t cooperate about day to day things;
b)The father is not as focused on X’s best interests and is often disorganised;
c)The father’s behaviour is often ‘quite weird’ and he is not always a good role model for X.
The Family Report
Mr R prepared a family report dated 7 November 2012. Significantly neither party required Mr R for cross-examination. Consequently the family report is accepted into evidence without challenge.
In his report Mr R noted that a week about arrangement has been in place for 18 months. Prior to this the parents had a shared arrangement where X spent four days with the mother and three days with the father.
At paragraph [16] Mr R said:
“There are no issues of family violence, mental health, parenting capacity or other issues for the Court to consider in determining this matter. Both parents are capable and competent parents who offer little, if any, criticism of the other parent. As such decision-making in this matter is narrowly focussed on the issue of relocation and its likely impact on X.”
This paragraph is significant.
The mother told Mr R that sometimes her relationship with the father was difficult. They can communicate with each other in a civil manner but sometimes the father is reluctant to communicate with her. Mr R records at paragraph [19]: “She voiced no significant criticism of the father and acknowledged that he is a competent and capable parent.”
The father told Mr R that he has a business relationship with the mother. He said he would like it to be better and hope it improves over time.
Mr R noted that both parents see X as an easy-going child who is adaptable and confident. Neither parent had any concern about his adjustment and development. He has a secure attachment to both parents.
He further noted that both parents were capable and were actively involved in X’s care.
The mother’s evidence
At the commencement of the hearing I raised my concern with Mr Barry that the mother had not raised any of the concerns she was now raising with the family consultant when interviewed for the family report. This is compounded by the decision by the mother to cross-examine Mr R.
She raises various complaints about the father in her affidavit. I do not propose to refer to them all but I have considered them.
The mother refers to many emails exchanged between her and the father. She extracts some of them but does not annex a single one. I place no weight on these. I have no way of knowing whether these emails were sent and whether they have been taken out of context.
The mother sets out in her affidavits reasons why she thinks she has greater parenting capacity than the father. The things she refers to are really matters of parenting style.
The mother describes X as a “beautiful little man” who has matured in the last 6 months. He is doing well at day-care. She says that despite this she feels he is suffering a little “by the stress between Mr Eddington and me. For example, he currently has a tic or an odd blinking habit.” This is the only thing she says about this. She provides no explanation as to how this can be attributed to stress.
When cross-examined the mother says she held back a lot in the family report interview. She says she was advised to be positive and did not think it would look good to be too negative about the father.
It was suggested to the mother that her complaints were minor, the mother said they were minor and regular and over a 2 ½ year period they have put a lot of pressure on her.
The mother conceded that these issues did not affect X and he is doing exceptionally well. X has flourished in the shared care arrangements, which has been in play since he was 2 ½ years old.
The mother also conceded that the father was not derogatory towards her but says he is inappropriate. She says he often does not greet her when they see each other on the ferry and that X may pick up on that. The father denies this.
It was put to the mother that the father tries to avoid talking about X in front of X and that he prefers to text or e-mail. The mother agreed with this. It is appropriate not to want to discuss issues concerning X in front of him.
One of the mother’s complaints was that the father did not include her contact details on X’s pre-school enrolment form. The mother was shown a copy of the enrolment form which showed these details. It is a shame that she did not ask the school to look at a copy of the enrolment form which would have cleared up a misunderstanding.
She conceded that X is resilient and able to cope very well. The mother's proposal would involve a lot of change for X. The mother also had to concede that she assumes that there was a lack of routine in the father's house and that if the father was not on the 5.00pm or 6.00pm ferry that X must be going to bed late. The mother agreed that this did not happen often.
In her affidavit the mother referred to disagreements the father has had with the people in the small community, one of which has gotten back to her. The way in which paragraph [24] of her affidavit is drafted suggests the mother was present on the occasion described however in cross-examination it is clear that she was not and was relying on what someone else had told her. She did not call that person to give evidence.
The mother has been living with her partner in Darwin since March 2013. The mother conceded that she did not tell the father about this. She says initially this was because it was not permanent but that then it had gotten too far and she had not gotten around to it. This is a significant change for X and she should have told the father.
Mr S’s affidavit, unsurprisingly, is very supportive of the mother. He has had little to do with the father and on his own evidence does not spend much time with X due to his long work hours. His evidence does not assist the resolution of the issues I have to determine. He was not cross-examined.
Hearing the mother’s evidence only strengthened my concerns that mother was searching for excuses to reduce the father’s time now that she was no longer seeking to relocate.
The father’s evidence
The father lives in the former matrimonial home. Currently the parties live about a kilometre apart.
In his affidavit the father describes the routine he has with X at his home. This is in contrast to the mother’s assertion that there is no routine at the father’s home.
The father says he is “still a little distrustful” and tries to avoid talking with the mother by phone, but will do so from time to time when an issue arises. He says he is careful in what he says because the mother has misconstrued or misconceived what he has said.
He says the mother has not raised any specific issues with him since the release of the family report. He says changeovers have been working well and can be at after school care once X starts full time schooling.
The father was cross-examined. The father disagreed that communication between parents is strained and dysfunctional. He says he did not pick up on any vibe from the mother that she was not happy with the shared care arrangement. The father said he tries to put things in writing because if he is talking to the mother on his own there are two sides of the conversation that can be taken in different ways. In the context of ongoing court proceedings his concern is understandable.
The father gave an example of the parents being able to communicate positively the week before X had taken a toy from child-care. The parents saw each other on the ferry and both talked to X about it.
The father said he tried to keep the communication businesslike and that he had not observed the mother being uncomfortable. He denies failing to greet the mother when they run into each other on the ferry. The parents sit on separate parts of the ferry and that X does not always see her.
The father says he has also been involved with X’s preschool and has attended activities there and had visited him in his class room. He agrees that the mother has organised and taken X to medical appointments, including specialist appointments. He says he finds out the date of the appointment when the mother has already organised it without consulting him. He says he has also taken him to the GP.
The father says that he asked the mother about looking after X in the morning if he started work early as he just wanted to know what his options were. He says he has neighbours who can assist in him in the morning if needed. He would drop X at their home at 6:45am X would get the school ferry at 7:20am. X would have breakfast at the neighbours. The father says they often have breakfast on the ferry.
He agreed that there had been a miscommunication about a Mother's Day function at X’s preschool. The father was asked about the incident on Christmas Day 2012 which the mother complains about in her affidavit. X had been lashing out which was unusual for him. The mother says she asked the father to look out for his behaviour. The mother sees that during conversation about this the father accused her of not reading up enough about how to parent properly. The father says he mentioned that he had read a lot about parenting and suggested she might find the information helpful. He said he did not tell her that she had not read enough. I accept the father’s evidence. I think this is an example of the mother misinterpreting what the father has said.
The father gave his evidence in a straightforward manner.
The parents’ communication style
It is clear that the parents’ have different preferences in how and when they communicate with each other. This has caused some tension.
The mother recites several instances where she has tried to talk to the father about X when they have seen each other on the ferry. X is present at these times. The father says he is often tired and does not want to talk then. It is preferable that the parents not talk about X’s welfare in front of him. This is a typical example of different communication preferences. This difference in communication style and preference seems to be the real source of discontent.
Both parents would benefit from attending a post separation parenting course to enable them to better communicate with each other in the future. I will order them to attend such a course.
Legal Principles
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (“Cth”) (“the Act”). The court must regard the best interests of the child as the paramount consideration: section 60CA. What it means in the individual case is informed by a number of statutory provisions.
The objects set out in section 60B(1) help clarify what Part VII aims to achieve when it talks about best interests: section 60B(1). There are also principles that underlie these statutory objections: section 60B(2). Section 65D of the Act gives the court the power to make a parenting order which is defined by section 64.
In deciding whether to make a particular parenting order, section 60CA requires that I must consider the matters set out in section 60CC(2) being the primary considerations and section 60CC(3) being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to section 60CC indicates, are consistent with the first two objects of Part VII, as stated in section 60B that the best interests of the children are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests and protecting them from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The concept meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright [2007] 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
There are 13 additional considerations set out in section 60CC(3) which I will refer to later in these reasons.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence the extent that doing so is consistent with the child's best interest being treated as paramount.
Section 61DA(1) provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child of family violence (section 61DA(2)). The presumption may also be rebutted if the court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility (section 61DA)(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the child to make an order to equal shared parental responsibility, I am then required by section 65DAA(1) and (2) to consider whether to make orders that the child spend equal time and if not equal time then substantial and significant time with each parent.
For a parenting order to involve the child spending substantial and significant time with a parent section 65DAA(3) requires that it must at least provide for the child to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the child's daily routine and on occasions and events that are of particular significance to the child and the child to be involved in occasions and events that are of special significance to the parent.
In MRR and GR [2010] HCA 4 the High Court found that section 65DAA(1) requires a court to consider both whether the best interests of a child is served by an order for equal time and that is it reasonably practicable for a child to spend equal time. Both elements must be present in order for a court to make an order for equal time. At paragraph [13] of the judgment the High Court said:
“Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”
The High Court also addressed the relationship between section 65DAA(1) and section 61DA(1) at paragraph [15]:
“Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.”
These proceedings commenced after the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) came into affect amending parts of the Family Law Act.
Application of the legal principles to the facts of this case
The Primary Considerations
There is no dispute that X enjoys a meaningful relationship with both his parents. X is thriving in the current shared care arrangement.
Section 60CC(2)(b) does not apply. There are no issues of family violence or abuse.
Relevant Additional Considerations
In this matter I consider the following relevant additional considerations.
Section 60CC(b) nature of the child’s relationship with each parent
X enjoys a close and loving relationship with both his parents.
Section 60CC(c) extent to which each parent has taken or failed to take the opportunity to participate in making decisions about major issues for the child and spending time with the child.
The evidence clearly shows that both parents are actively involved in X’s care and both wish to continue to participate in making major decisions about his care. X has thrived with both parents being actively involved in his care.
Section 60CC(d) the likely affect of any change in the child’s circumstances
The father’s proposal does not involve any change to the current arrangements. The mother’s proposal involves significant change. This factor supports the father’s proposal.
During submissions the mother's lawyer also raised the fact that X would be in transition next year and then going to school. There is no evidence to suggest that X has ever had any difficulties adjusting to change. It is the mother's proposal that would involve drastic change for X. Several of the complaints of the mother were not made out I have referred to some but not all of them. My impression is that the mother has focused on the negative and thus has interpreted things negatively.
Section 60CC(e) the practical difficulty and expense of spending time with and communicating with the child
This is not a factor of any concern in this case. The mother’s move will not impact on the shared care arrangement. The mother works in the city near X’s preschool. What the mother’s move will mean is that the parents won’t run into each other on the ferry which at times has been uncomfortable for them both. It also meant that they will not run into each other in the small community and are less likely to hear gossip about each other. This factor supports the father’s application.
Equal shared parental responsibility
The parents both seek an order for equal shared parental responsibility. The parents have been making major decisions together as needed. It is in X’s best interests that he receives the input of both his parents into major decisions concerning his welfare.
Equal time
Having considered that it is in X’s best interest for his parents to have equal shared parental responsibility, I am required to consider whether it is in X’s best interest for him to continue in the equal shared arrangement he has been living in since March 2013. I do not accept the mother’s evidence that X is showing signs of stress. To the contrary X appears to be thriving under this arrangement. There is nothing to suggest that this will not continue.
Conclusion
It is unfortunate that this matter had to be litigated. Either the mother was disingenuous with the family consultant and did not raise issues of concern or the mother is now seeking to exaggerate problems in order to support her application for her to become a X's primary carer. I am of the view that it is the latter.
The mother's lawyer submitted that the parties do not have the capacity to communicate effectively as the father gives mixed messages. He says that it is understandable that the mother is uncomfortable. I do not accept that the parties’ communication is very poor. The evidence shows that parties have been able to communicate about issues concerning X’s welfare. I accept that the father's style of communication sometimes frustrates the mother. Both parents were improving their communication accepting that they have different styles and preferences.
The mother's proposal was really about what would suit her and not orders in X's best interests. The evidence has revealed issues with the parents have been uncomfortable but did not reveal any problems which have impacted negatively on X. The mother’s proposal to relocate with X to Adelaide must have put a strain on the parties’ parenting relationship. Before that proposal the parties were able to cooperate with each other without court intervention. It is inevitable that tension will increase when one parent seeks to relocate. This is not a criticism of the mother for bringing such an application. She has legitimate reasons for doing so. It is to her credit that she changed her position on the relocation issue after she considered the family report. Hopefully the parenting course will help both parents improve communication with each other.
For these reasons I make the orders appearing at the beginning of this judgment.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 11 September 2013
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