FITZGERALD & TAFANI

[2018] FCCA 632

FEDERAL CIRCUIT COURT OF AUSTRALIA

FITZGERALD & TAFANI [2018] FCCA 632

Catchwords:
FAMILY LAW – Interim – parenting.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS FITZGERALD

Respondent: MR TAFANI

File Number: SYC 8171 of 2017

Judgment of: Judge Henderson

Hearing date: 5 February 2018

Date of Last Submission: 5 February 2018

Delivered at: Sydney

Delivered on: 8 February 2018

REPRESENTATION

Counsel for the Applicant: Mr O’Sullivan

Solicitors for the Applicant: O'Sullivan Legal

Counsel for the Respondent: Mr Lethbridge

Solicitors for the Respondent: Keypoint Law

ORDERS PENDING FURTHER ORDER

1. The matter is listed on 22 May 2018 at 9:30am for mention to allow the parties to trial interim arrangements. 

2. The parents have equal shared parental responsibility for the child X born (omitted) 2016.

3. The child live with the father as follows:

   (a)Each week from after day care Monday to commencement of day care Wednesday;

   (b)Each alternate week from 5pm Saturday until 5pm Sunday with one weekend to coincide with the one weekend per month the mother works;

   (c)At any other time as agreed between the parties.

4. The child otherwise live with the mother.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 8171 of 2017

MS FITZGERALD

Applicant

And

MR TAFANI

Respondent

REASONS FOR JUDGMENT

1. The matter of Fitzgerald and Tafani. This was an application in a case filed by the father on 18 December 2017 seeking a recovery order for their child X, born (omitted) 2016. The mother initially filed for final orders and interim orders for the child to live with her and spend time with the father Tuesday and Thursday from 4pm to 6pm and Saturday 9am till 12 noon.

2. The father’s recovery order also sought interim parenting orders that the child live with him and spend time with his mother each alternate weekend from Friday to Sunday and in the other week from Friday to Saturday morning having regard to her work commitments.

3. This is not a recovery order application and I dismiss that part of the father’s interim application.

4. Mr O’Sullivan acted for the mother and Mr Lethbridge, Senior Counsel, for the father.

5. The evidence for the parties was as follows.

6. The applications to which I have referred.

7. Affidavit of the mother of 19 January 2018; her father Mr E, 19 January 2018; her mother Ms A, 8 January 2018; and an affidavit of 6 December 2017

8. For the father, his affidavit of 12 December 2017 and 1 February 2018.

9. A Child Dispute Conference Memorandum dated 5 February 2018.

10. The case outlines filed by each parties’ legal representative.

Short chronology

1. The father is 35. The mother 37. They are both highly skilled (occupations omitted).

2. They commenced co-habitation in (omitted) 2013.

3. They were married on (omitted) 2014 and separated on 25 November 2017.

4. Their son X was born on (omitted) 2016.

5. As I read the evidence, this was a short, unhappy and unfulfilling marriage for both parents. However, they have a much-loved child, X, and, as I said, both parties are (occupations omitted), the mother working full time, the father less time, but still working substantially and significantly.

6. The father carried out some (omitted) studies during the relationship and, despite the mother’s allegations that X is at some risk in his father’s care, the evidence filed by the mother and the simple facts of the matter are to the contrary.

7. X has been in day care all his life. Fortunately, due to his father’s study and work commitments, he was able to care for X each Tuesday, and this had happened for a period of eight to 10 months prior to separation. He was able to collect him primarily from day care at an earlier time with his mother taking him to day care. X was clearly cared for by his parents on a joint basis, as working parents always do, commensurate with their work commitments.

8. X was in his father’s full-time care from late February 2017 to 19 April 2017 after a paediatrician advised the parents to take him out of day care because of the recurrent infections he was receiving and that he was underweight due to those infections and he was not thriving as he had been.

9. After that period of time, that is, when X is in his dad’s full-time care effectively, and with his mother when she comes home from work, of course, the paediatric report on 1 June 2017 being annexed to the father’s affidavit and the last report in that series of reports says this:

   On examination today, he is a healthy, thriving, non-dysmorphic child. Weight is fine. Chest was clear. X is a well boy.

10. In the report of 7 March 2017 it was stated that he was underweight, suffering recurrent infections and to give him a break from day care. He had a busy life. So the child’s health had clearly improved due to the care of both his parents, but remembering that his father was the one that was primarily caring for him during the day.

11. Thus, due to not attending day care and the father and mother being able to care for their son, their son’s health improved. He was not attending day care five days a week, and X thrived. The mother has conflated, as I read the material, her disappointment, concerns, lack of – unhappiness, whatever, issues about she and the father with the father’s capacity to care for his child and his capacity as a parent. Occasionally that is a proper connection. In this matter it is improper.

12. X clearly has two competent, capable, devoted parents whose marriage has simply broken down, and prior to that date they equally cared for him to the best of their ability, commensurate with their work commitments.

13. The evidence of the maternal grandparents only cements Mr Lethbridge’s submission, which is of grave concern to the Court, that there is little positive attitude towards the father in that household where X currently lives with his mother and grandparents, and if X’s time with his father is not of some weekly and consistent and regular and – time, there will be very little positive input about the father in that family.

14. Their view of the father as a parent is really somewhat irrelevant in this interim application. It is also a fact that the mother simply left the home on 25 January 2017 saying to the father, “Do not come back on the weekend.” He did not know the marriage was over, but it was. The mother has acted in what I would regard – on this level and other levels – in particular, enrolling the child in day care five days a week when that was not their agreement – in a rather high-handed fashion. Merely being the mother does not give you some proprietal right over a child.

15. The father returned to the home on 25 January 2017 and an altercation ensued between the parents – most unfortunate. A very difficult time. The mother changed the locks on the house on 1 and 2 January 2017. Most concerning is that the child, who had always lived with his mother and father and been with his dad each day on a Tuesday for at least eight to 10 months prior to separation, has not seen his father except for some brief hours since his mother determined that their relationship was over and that he should not see his father. He is now attending day care five days a week, something that the paediatrician was not particularly supportive of, given X’s recurrent illnesses, which he still does occasionally suffer from, as all children do.

16. This is an interim hearing. I cannot make finding of facts that are contested. But there is simply no evidence that the mother puts forward that the father is a risk to the child. I simply do not see it in her material. And the mother’s fears expressed to the Court about what the father will or will not do or what he does or his high-handed attitude or his rigid approach as expressed by her parents are simply not justified on the evidence. Otherwise this competent, capable, caring mother would not have left her child with this rigid father who poses a risk to the child every Tuesday as she did. She would have made some other arrangement.

17. What has happened to change the arrangement as at separation? Occasionally facts and history may be reinvented.

18. Going to the Act[1].

    [1] Family Law Act 1975.

19. There is absolutely no reason why I would rebut the presumption of equal shared parental responsibility. It is absolutely crucial X has both his parents in his life. Having found that there ought to be equal shared parental responsibility, I must consider an order for equal time or significant and substantial time. At his young age, 20 months, an equal time order is contraindicated on the facts.

20. However, given his usual care arrangements, an issue of substantial and significant time must be considered, but commensurate again with his young age.

21. I am unable to say that X has ever been subjected to abuse in his parents’ household, but I can say this was a most unhappy, unfulfilling marriage.

22. His wishes are irrelevant. He is 20 months of age.

23. Each of these parents have parenting capacity to provide for the needs of their child emotionally, psychologically and physically. I am most concerned as to the mother’s now attitude to the father and the importance of the father in X’s life, given his substantial care of his child during the relationship, based upon evidence that I am having difficulty accepting is accurate.

24. The nature of the child’s relationship with his parents. The child dispute memorandum indicated that the parents agreed the child was closer to the mother. I did not see that came from in the child dispute memorandum. I am not sure where that comment came from. However, all of this is interim and is not tested.

25. Under the heading future directions, the report writer said, it is considered helpful that children have one main base at this young age and that is acceptable social science. It is best if he can spend time with both parents and his time with his father start as soon as possible.

26. The Court needs to know what the parents’ working commitments are. The father’s proposal if the child lives with him and he only saw his mum on the weekend would not be sufficient time for X to maintain his relationship with his mother. It is beneficial for X to have a regular and predictable arrangement whereby he spends time with each parent every few days, although I do not want to create a bouncy ball situation for this young child.

27. The mother’s proposal for X to spend time with his dad three times a week may be a good starting point. However, for X to resume his relationship with his father is crucial and it has only been some two months, so we are not talking a significant break in time. However, the family consultant goes on to say:

    It is not clear why his time needs to be restricted to two or three hours when Mr Tafani used to look after him for a full day. Therefore it could include a full day at least once a week. He has a busy timetable, young X, and spend long days in day care. It would be in his interest if the parenting arrangement allowed a more restful home-based timetable, and that is something, if parents can achieve, they ought take advantage of. There needs to be a balance between ensuring X spends reasonable time with each parent and ensuring his timetable does not become more taxing. The parents to attend various courses.

28. Given my assessment today that the evidence support the child not being at risk in his father’s care, I will make orders that maximise his time with each of his parents, as is X’s right and as was the usual care arrangement prior to separation.

29. Therefore the parents will share parental responsibility of their son. X will live with his father each week from after day care Monday to the commencement of day care Wednesday, and each alternate week from 5 pm Saturday to 5 pm Sunday, and one of those weekends is to coincide with the one weekend per month that the mother also works on a weekend.

30. Otherwise the child will live with the mother, who has the support of her parents to care for her son when she is working and unable to do so. I find these orders will maximise X’s time with each parent when they are not working or when they have assistance of family to work and will give him a more restful life as proposed by the child dispute resolution consultant and that it will take him back to the situation of spending four days a week in child care and not five, as his mother unilaterally changed his arrangement.

31. All other time as agreed between the parents.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date: 15 March 2018