Fleur and Fleur

[2009] FamCA 631

FAMILY COURT OF AUSTRALIA

FLEUR & FLEUR [2009] FamCA 631

FAMILY LAW – PRACTICE AND PROCEDURE – Transfer to Federal Magistrates Court
FAMILY LAW – CHILDREN – Interim – with whom a child spends time – Injunctions

Family Law Act 1975 (Cth)

APPLICANT: Mr Fleur

RESPONDENT: Ms Fleur

FILE NUMBER: MLC 4257 of 2009

DATE DELIVERED: 10 July 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 10 July 2009

REPRESENTATION

THE APPLICANT: Mr Fleur in person

COUNSEL FOR THE RESPONDENT: Mr Allen

SOLICITOR FOR THE RESPONDENT: Fiona R McGregor

Orders

1. That the application of the husband filed 15 May 2009 and the response of the wife filed 29 June 2009 be transferred to the Federal Magistrates Court of Australia.

2. That until further order, the husband and the wife have equal shared parental responsibility of the child … born … April 2006.

3. That until further order the child live with the wife.

4. That until further order the husband spend time with the child as follows:

   (a)upon the husband giving the wife 24 hours notice (by telephone call, SMS text message or by email) on a Tuesday, Wednesday or Thursday evening from the conclusion of his workday until 7.30pm;

   (b)each fortnight from 10.00am on Saturday to 6.00pm on Sunday commencing 11 July 2009; and

   (c)at other times as may be mutually agreed.

5. That until further order, the husband is restrained by injunction from allowing Mr G Fleur and Mr O Fleur to be present when the husband is spending time with the child.

6. That all interim applications in the said applications are otherwise dismissed.

7. That unless otherwise mutually agreed and until further order, all changeover times relating to the child occur at the home of the wife.

8. That during the colder months until further order, the husband’s time with the child during the mid-week shall take place at the wife’s home with the husband to be at liberty to take the child from the wife’s home upon daylight hours becoming longer and the weather becoming warmer.

9. That the wife’s family name as recorded on the Court’s file be altered to read “FLEUR” and the name “[D]” be deleted.

10. That pursuant to s 65DA(2) and s 62B, 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 Fact Sheet attached hereto and these particulars are included in these orders.

11. That the reasons for judgment this day be transcribed and be placed on the file and be made available to the parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4257 of 2009

MR FLEUR

Applicant

And

MS FLEUR

Respondent

REASONS FOR JUDGMENT

1. This is an application brought by Mr Fleur, whom I shall refer to in these proceedings as “the husband.”  He filed an application on 15 May 2009, supported by an affidavit sworn on the same day, and it is common ground that the application should have been filed in the Federal Magistrates’ Court of Australia, because that it is a modestly straightforward parenting matter. 

2. It having come into the judicial duty list I propose to deal with the interim issues. 

3. Mrs Fleur, to whom I shall refer in these reasons as “the wife,” filed a response on 29 June 2009, supported by an affidavit sworn on 24 June.  Mr Fleur, the husband, has been representing himself in these proceedings, and Mr Allen of counsel has represented the wife. 

4. The husband’s application before me today sought three orders, but when defined, he was seeking to spend time with the subject child, who is aged three years, each weekend.  On the first weekend he wanted from after the conclusion of his work on Friday to 6 o’clock Saturday, and on the second weekend, from 9 am on the Saturday until 6 pm on Sunday.  The second order he sought was that his father and brother, O, be able to see the child.  The third order was that he would pick up the child, and he requested that his wife collect her on the return trip. 

5. The wife’s position is a little different.  She specifically sought injunctions against the husband bringing the child into contact with the paternal grandfather or the paternal uncle, O.  She sought orders that the husband have time with the child on each alternate weekend, from 10 o’clock on Saturday morning until 5 o’clock on Sunday, together with some other times during the year. 

6. There are a number of other orders in relation to time, but for the purposes of today’s exercise, I am not going to specifically deal with them, on the basis that this case is going to the Federal Magistrates’ Court and there will be a directions hearing quickly. 

7. In the event that there is not time for a judicial officer to deal with things such as Father’s Day, which we all know is in September, I am reasonably confident, from what I have heard, that, notwithstanding I do not have to make orders about it today, the parties can use some commonsense and reach a compromise. 

8. The wife’s position also is that Mr Fleur, the husband, should do all of the travelling. 

9. The evidence is very short.  The husband, in his affidavit, which was amended because of some references to privileged information, says that the parties separated some time around April last year, and that up until March of this year, he saw the child under the supervision of the wife.  He travelled backwards and forwards to see the child. 

10. The travelling in this case is still an issue.  There are three important land points.  The husband lives in the western suburbs.  The wife lives in the eastern suburbs.  The husband works in the south eastern suburbs.  The husband said that about March of this year he picked up the child on the Friday night to drop her off on the Saturday night under a specific arrangement.  That went on for about a month, but all fell apart when the wife found out from something that the child told her that the husband’s father and brother had turned up and stayed about an hour or less.

11. The husband concedes that that occurred.  There was then a dispute between the parties over the telephone, and the husband did not see the child for three or four weeks, after which the parties reached agreement that the time between father and daughter should be supervised; that has continued since.  The husband says that he now has concern that he is being controlled by the wife about the time he spends with the child, and under those circumstances he needs orders.  The wife’s position is a lot more comprehensive, particularly having regard to the fact that the affidavit material was drawn by a lawyer.

12. Dealing with the issues in reverse order, in terms of the injunctions that the wife seeks against the husband bringing the child into contact with the paternal grandfather and the paternal uncle, the wife’s argument that the child is a defenceless and vulnerable three year old child, and the wife faces the anxiety of the child being exposed to these two people, at least on an interim basis. 

13. The problem about both the grandfather and uncle is that each of them has a history with the Victorian Police Force and the courts.  That, perhaps, in this day and age is not unusual, except that the nature of the offences recorded gives me considerable disquiet in circumstances where the evidence cannot be tested in any way.

14. Before setting out what those details are it is important to note that the husband says that, whilst he acknowledges those family problems, he says he will be supervising the child, and he would not allow her to be put at risk. 

15. The grandfather’s behaviour I find perplexing.  He is now 70 years of age, but as late as May 2009 he was convicted by the Victorian courts for cultivating cannabis and theft and sentenced to a term of imprisonment to be served by way of intensive corrections order. 

16. It is rather unusual, perhaps, to see a man of that age being involved in the drug trade, and the husband has some explanation for that, but the outstanding feature of the case is the fact that he was sentenced to a term of imprisonment.  I must conclude from that that the sentencing court took a very dim view of his activities, whatever they were.  There is also a previous matter, although some years ago, involving violence. 

17. It may mean, in respect of the grandfather, that he was caught in some sort of bind, and he would never hurt his granddaughter but the facts of life are that children get caught in all sorts of things and watch adults get into trouble.  The psychological impact on children witnessing those things is well-known to the social scientists.  In my view, at least on an interim basis and without the evidence being tested, it is important that the child not be brought into contact with her paternal grandfather.

18. The paternal uncle is different.  He is also of some concern.  The husband concedes that his brother is a schizophrenic.  The last contact with the Victoria Police appears to be about four or five years ago, and according to the subpoenaed material, the police were called to investigate an argument.  There is an earlier event which involved police attendance again.  The most serious issue though occurred in 2001, which I acknowledge is eight years ago, which involved making threats to kill, and involved a family member.  It also involved a knife.

19. Mr O Fleur’s history goes back to 1995, which involves seven offences, including violent behaviour, including robbery and burglary.  All of those matters give me considerable disquiet, notwithstanding two things.  The first is there is a concession that the brother is a schizophrenic, and the second is that there has been no recent behaviour or involvement in the law, but in both cases the evidence needs to be fleshed out, and it needs to be tested.

20. I see no advantage for the child in having any immediate contact with either of these two people in circumstances where I do not know the nature of the relationship with them, particularly having regard to the fact also that there was a very limited visit earlier this year.  I propose to make the injunctions for the reasons that I will come to in a moment. 

21. Again working backwards, the second issue relates to travel.  There is considerable distance between the parties.  The wife runs the child around all week.  The husband works all week.  The husband wants to spend his non-working time on weekends with the child, who is only three, and therefore not at school, but the wife wants to spend time doing things with other people on weekends that she presumably cannot do on the weekends. 

22. If she was to share in the travel she would be travelling the same sort of distance that the husband would.  She would be facing the same problems in terms of traffic jams, and the fact that she cannot have much interactive time with the child whilst driving.  Both parents effectively have the same problem.  There is only one distinguishing feature between the two, and that is the economics. 

23. The wife is a Centrelink benefit recipient and she receives child support.  The husband is a professional who earns about $100,000 a year.  It seems to me that on the Centrelink benefit, even with child support, the wife would be struggling to make ends meet on a day-to-day basis.  The husband is struggling too, because he settled the property issues not long after separation, and he has committed himself to a significant mortgage. 

24. The bottom line, however, is that there is a disparity between the parties, and having regard to the fact that I still think that the child can travel back from the western suburbs to the eastern suburbs on a weekend where the traffic is relatively light, and the child could still converse with her father whilst he is driving, I see no reason why he should not do the travelling, at least on an interim basis. 

25. I do not intend to fetter any future court by saying that, but it seems to me that at least until the court can have a look at the full circumstances, not only in terms of the stresses on the child associated with this travel, but also the costs, that the husband can afford the travel.

26. That leaves me with the one remaining issue, which is the time.  There is not a significant distinction between the parties, other than the fact that the husband wants the weekends, and the wife wants one weekend to spend time with the child herself.  Both parties have the same sort of concepts in mind.  The solution to me sounds simple, but I appreciate that for somebody who is a busy professional, who travels a lot, and who has lots of meetings, including late in the day, it will not be all that easy for him to spend time during the week time.  But it is during week times that parents, who are not the primary attachment figures to children who are very young, develop a responsibility as parents to do things other than just leisure things. 

27. It involves getting them ready for bed, getting them a bath, getting them fed – all the sorts of things that you would presumably not have to do under any stressful time constraints on a weekend.  What I suggested, and the wife has picked up on, is that perhaps one night a week during the interim period the father spend time with the child so that he can do just those sorts of things.  It seems to me that his travel restrictions because of work may be ameliorated by the wife being given notice as to what night of the week he can come, and she, very sensibly in my view, responsibly has offered that if he gives her 24 hours notice she will make the child available.

28. I would expect both parties to be reasonable, having regard to the ever-changing needs of this little girl.  But it seems to me that the wife does need a weekend, and the child needs to see her father at least one night a week, and it may be more if it can be organised.  Obviously, during the winter months there is nowhere for the husband to go, because he is living in the western suburbs and the child is living in the eastern suburbs, but again, the mother has indicated that she will allow him use of her facilities.

29. I would expect that that will mean that she will not be hovering, supervising, interfering, or any of those sorts of things, during the father’s time with the child.  If, in fact, a court in the future hears that the opposite has happened, then the court may conclude that the wife is not a responsible parent.  What she would be endeavouring to do is to thwart the relationship between father and child, and that may give rise to an argument about whether or not she is keen for him to have a meaningful relationship with the child. 

30. The eastern suburbs and her home is obviously a sensible place for that to occur, pending the weather changing.  It is obviously a commonsense thing for parents, having regard to daylight time and also the weather, but I would certainly not expect that the child would be constrained to stay at the mother’s home when the weather is warmer and the daylight is longer. 

31. I am not going to impose those restrictions, because I would expect the parties to use commonsense.  I am setting this out in some detail because a future court may look at what the parties have done beyond today, and may tailor future orders depending upon how sensible these parties are, and how child-focused they are. 

32. Any decision that I have to make is a parenting decision.  The parties have given me that responsibility because they cannot work this out themselves.  Any decision I make has to be made in the best interests of the child.  It is the paramount, but not the only, consideration.  In determining what is in the best interests of the child, I am obliged to look at the issues associated and set out in s 60CC. 

33. Section 60CC is divided into two main parts.  The first part relates to the child having a meaningful relationship with both parents but also being protected from physical and psychological harm.  That latter point has been described as the twin pillars, and I agree.  I think, having regard to this child’s age, short periods, short times apart, will enable her to develop a meaningful relationship with her father, if that has not already occurred.  Just having weekend time, in my view, does not necessarily assist in the creation of a meaningful relationship.  The need for protection gives rise to the need for an injunction.  Whilst there is a specific provision in Part VII of the Family Law Act 1975 (Cth) (“the Act”) to protect children by way of injunction, its basis really comes from one of the twin pillars.

34. This is a case where I do not have enough evidence to be confident that the child may not be at risk in the company of her grandfather and uncle, and on that basis I am prepared to make the injunctions. 

35. The second part of s 60CC looks at a variety of issues.  Most of them in this case are not particularly relevant.  What is important is that, by virtue of the husband being offered time with the child away from the wife, I am confident that the wife is conceding that the husband has the necessary parenting skills and capacity to care for the child within the time constraints that he has outside of his work hours. 

36. As for the question of the parental responsibility however, I do not have enough information.  That is a matter that a court in the future is going to examine.  How the parties behave over the next six to 12 months will dictate, in many ways, what a court ultimately does. 

37. Section 60CC(4) requires me to look at what the parties have done since separation.  I am comforted by the fact that things were working well between the parties until the husband introduced his father and brother, albeit for a very short period of time.  I am not prepared to make any finding about that in terms of parental responsibility at this stage, but it occurs to me that it probably was not very sensible if the husband knew that the wife was very sensitive to that issue.  For that reason I think the wife was well justified in pulling back because, presumably, the husband, whose application makes it clear that he wants his father and brother involved, would not have compromised.

38. In those circumstances it is my view that the orders I am about to pronounce are in the best interests of this child. 

39. That is not the end of the matter.  Section 61C sets out that until a court orders otherwise, each of the parents has equal shared parental responsibility.  That has nothing to do with time.  It is about decision-making.  However, I am being asked to make a parenting order, so, therefore, the presumption set out in s 61DA normally would apply, unless it is rebutted in some way.  In this case the parties both agree that they should have equal shared parental responsibility.  That, in turn, takes me to the question of the time being on an equal basis, and if that is not appropriate, then on a substantial and significant time. 

40. Neither of those matters are matters pursued by the husband, nor, having regard to the discussion we have had today, could they be.  In my view, having regard to s 61DA(3), the presumption is rebutted, notwithstanding that I propose to make orders that the parties have equal shared parental responsibility for the child. 

I certify that the preceding Forth (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  20 July 2009