FURNESS & VINEY (No.2)

[2019] FCCA 2494

FEDERAL CIRCUIT COURT OF AUSTRALIA

FURNESS & VINEY (No.2) [2019] FCCA 2494

Catchwords:
FAMILY LAW – Final parenting proceedings – child aged three years.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CG, 61DA, 65DAA

Cases cited:

Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR & GR [2010] HCA 4
Salah& Salah [2016] FamCAFC 100
Slater & Light [2011] FamCAFC 1

Applicant: MR FURNESS

Respondent: MS VINEY

File Number: PAC 535 of 2017

Judgment of: Judge Obradovic

Hearing dates: 28 February 2019, 1 and 4 March 2019

Date of Last Submission: 4 March 2019

Delivered at: Parramatta

Delivered on: 6 September 2019

REPRESENTATION

Appearing for the Applicant: In person

Counsel for the Respondent: Ms Winfield

Solicitors for the Respondent: Jacqui Griffin Mobile Solicitor

ORDERS

1. All prior parenting orders with respect to the child X born … 2015 are discharged.

2. The parents shall have equal shared parental responsibility for the child X born … 2015.

3. X shall live with the mother.

4. X shall spend time with the father:

   (a)For a period of six months from the date of these Orders:

   (i)Each Thursday after childcare or 5pm to Friday morning before childcare or 9am;

   (ii)Each Sunday from 9am to 5pm; and

   (iii)For a block period of four days over the 2019/2020 Christmas school holiday period as agreed between the parents but failing agreement from 6 January to 10 January 2020.

   (b)Thereafter and for a further period of six months:

   (i)Week 1: Thursday after child-care/pre-school or 5pm to Friday morning before child-care/pre-school or 9am; and

   (ii)Week 2: from 9am Saturday to 5pm Sunday.

   (c)Thereafter and until X commences school:

   (i)Week 1: Thursday after child-care/pre-school or 5pm to Friday morning before child-care/pre-school or school or 9am;

   (ii)Week 2: Friday after child-care/pre-school or 5pm to Monday before child-care/pre-school or school or 9am; and

   (iii)For a block period of six days over the 2020/2021 Christmas school holiday period as agreed between the parents but failing agreement from 4 January to 10 January 2021.

   (d)Once X commences school:

   (i)During the school term:

   A.Week 1: Thursday after school or 3pm to Friday morning before school or 9am; and

   B.Week 2: Friday after school or 3pm to Monday before school or 9am.

   (ii)For the first half of each school holiday period in odd numbered years and the second half of each school holiday period in even numbered years.

   (e)Notwithstanding the above orders, X shall spend time with the father:

   (i)On her birthday if she is not otherwise in the care of the father from immediately after school until 7pm on a school day or from 9am until 12pm if the day does not fall on a school day;

   (ii)On the father’s birthday if she is not already spending time with the father from immediately after school until 7pm on a school day or from 9am until 12pm if the day does not fall on a school day;

   (iii)On Father’s Day if she is not otherwise spending time with the father from 9am until 5pm;

   (iv)In all even numbered years from 12pm Christmas Day until 5pm Boxing Day;

   (v)In all odd numbered years from 9am Christmas Eve until 12pm Christmas Day; and

   (vi)On Easter Saturday from 5pm until 5pm the following day.

   (f)At all other times as agreed between the parents in writing.

5. Notwithstanding the above orders, X shall spend time with the mother:

   (a)On her birthday if she is not otherwise in the care of the mother from immediately after school until 7pm on a school day or from 9am until 12pm if the day does not fall on a school day;

   (b)On the mother’s birthday she is not otherwise spending time with the mother from immediately after school until 7pm on a school day or from 9am until 12pm if the day does not fall on a school day;

   (c)On Mother’s Day if she is not otherwise spending time with the mother from 9am until 5pm;

   (d)In all odd numbered years from 12pm Christmas Day until 5pm Boxing Day; and

   (e)In all even numbered years from 9am Christmas Eve until 12pm Christmas Day.

6. For the purposes of facilitating the child’s time with the father, changeover shall occur at the child’s day-care/pre-school or school or otherwise at Suburb A Shopping or as agreed between the parents in writing.

7. In the event that either party wishes to take the child on holidays the party intending to travel shall provide to the other reasonable written notice of their intended travel plans including dates and a copy of the travel and accommodation itinerary. Consent to travel shall not be unreasonably withheld by either party.

8. The party holidaying with the child shall facilitate and encourage telephone communication between the child and the other parent during the holiday period daily.

9. The child’s passport shall be held by the mother and the mother shall relinquish it to the father within seven days upon having been provided with the father’s travel plans pursuant to Order 7 above and the father shall return the child’s passport to the mother within seven days’ of returning from travel.

10. The parties are to sign all documents required to renew the child’s passport as and when the time for renewal arises and the parties shall equally bare the cost of same.

11. Neither party shall denigrate the other party to or in the presence or hearing of the child nor cause or allow any other person to denigrate the other party to or in the presence or hearing of the child.

12. Each party shall advise and keep the other advised of his or her current contact telephone numbers and email address and shall notify the other of any pending change no less than seven days prior to such change.

13. Each parent shall advise and keep the other advised of his or her current residential address and shall notify the other of any pending change no less than seven days prior to such change.

14. Each parent shall do all such things as are necessary to authorise any primary and high school the child may attend from time to time to provide each parent of all school reports, school newsletters and other information regarding the child’s school activities as they become available from time to time and this Order shall act as sufficient authority to such school for that purpose.

15. The father is at liberty to liaise with the mother and directly with the child’s treating medical practitioners, hospital and/or other health care professionals to obtain any information he requires about the child’s medical history and treatment and the mother is to authorise the medical practitioner(s) in writing to facilitate this no later than seven days after the date of these Orders and these Orders shall act as sufficient authority for that purpose.

16. In the event the child suffers a serious illness or injury, is admitted to a hospital, undertakes any emergency medical treatment or receives specialist medical attention, then the parent with whom the child is living at the time must notify the other parent as soon as reasonably practicable and in any event no later than two hours after such an event and provide details of the treating doctor or like professional.

17. The mother shall keep the father informed of the name, address and telephone number of the child’s treating doctor or health professional from time to time.

18. Each parent is permitted to attend any sporting, school or special events in which the child may participate from time to time. 

19. Within seven days of the date hereof:

    (a)The mother forward to the father the names and addresses of three family counsellors within a five kilometre radius of Suburb A Shopping Centre;

    (b)Within seven days of receipt of the names, the father choose one person from the list provided by the mother and notify the mother’s solicitor in writing of his choice;

    (c)Thereafter the parties forthwith each do all such things as are necessary to attend on the counsellor and follow all such directions as the counsellor may make for attendance at times required and for co-operation with the counselling process (including payment of half the required fees each) as recommended by Dr B.

20. Each of the parents shall attend and complete the ‘Keeping Kids in Mind’ program facilitated through Catholic Care (phone number …) within the following six months from the date of these Orders.

21. Remove all outstanding issues from the list of cases awaiting finalisation.

IT IS NOTED that publication of this judgment under the pseudonym Furness & Viney (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 535 of 2017

MR FURNESS

Applicant

And

MS VINEY

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings between the applicant father, Mr Furness born … 1971 and the respondent mother, Ms Viney born … 1980 with respect to one child, X born … 2015.

2. The father commenced proceedings with the filing of an Initiating Application on 8 February 2017 which was amended on 9 October 2018.

3. The mother filed an Amended Response to the father’s Amended Initiating Application on 12 November 2018.

4. On 22 May 2018 the matter was set down for a three day final hearing with respect to parenting and property proceedings on 14, 15 and 16 November 2018.

5. On 18 October 2018 the parties invited the Court to make final orders by consent with respect to property settlement which the Court made.

6. The matter was not reached on 14 November 2018 and was subsequently set down for final hearing for two days, noting that property proceedings were finalised, on 28 February 2019 and 1 March 2019.

7. The matter ultimately was adjourned for final submissions on 4 March 2019, these being the Reasons for Judgment with respect to the final hearing.

8. The issues for determination are narrow. The parties agree that the child should live with the mother. They agree that she should spend time with the father on a graduated basis, but not how that graduated basis ought to be. They do not agree on how much time the child should spend with the father. The parties also disagree about parental responsibility.

9. Given the opinions expressed in the Expert’s Report of Dr B, a well-respected and experienced clinical psychologist, it is unfortunate that the parties were not able to resolve their differences and that the matter proceeded to final hearing over three days.

Relevant Legal Principles

1. The central enquiry is for the Court to determine the outcome that will be best for the child the subject of these proceedings.

2. Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

3. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

4. In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child. The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]

   [1] see for example Slater & Light [2011] FamCAFC 1at [45]

5. In applying the primary considerations, the Court is to give greater weight to the need to protect children from harm than to the benefit to the child of having a meaningful relationship with both of their parents.

6. A meaningful relationship “is one which is important, significant and valuable to the child”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[3]

   [2] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 at [121]

   [3] McCall & Clark at [122]

7. In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence[4]. The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.

   [4] s60CG (1)(b); See the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35] (although in the context of an interim hearing)

   [5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)

8. Section 61DA of the Act 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 child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

9. In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[6]

   [6] MRR v GR [2010] HCA 4 at [15]

Short Chronology

1. The father was born on … 1971.

2. The mother was born on … 1980.

3. The parties met through a mutual friend in … 2014 and commenced a relationship shortly thereafter in … 2014.

4. The parties commenced cohabitation in … 2014 at the father’s residence in Suburb E.

5. In … 2015 the parties moved to rental accommodation at Suburb F. The mother remained living in this home until July 2018.

6. The mother commenced maternity leave in … 2015.

7. On … 2015 the parties’ daughter, X was born.

8. The father sold his property at Suburb E in … 2015.

9. The child was christened in the Roman Catholic Church in … 2016.

10. The parties separated on 27 November 2016 with the father moving from the rental property at Suburb F into a serviced apartment.

11. On 21 December 2016 the police applied for an Apprehended Domestic Violence Order against the father on behalf of the mother. Interim orders were made in accordance with the mandatory order on behalf of the mother.

12. On 1 February 2017 the father commenced living in a one bedroom apartment in Suburb G.

13. The father commenced proceedings on 8 February 2017.

14. On 4 April 2017 the parties attended a Child Dispute Conference with Ms D.

15. On 4 April 2017 the parties entered into consent orders whereby the Court made orders for the child to live with the mother and spend time with the father each Monday from 12.30pm until 4.30pm and each Wednesday from 12.30pm until 4.30pm.

16. On 20 April 2017 the matter proceeded to an interim hearing. 

17. On 22 May 2017 the Court made orders on an interim basis that the child live with the mother and spend time with the father each Tuesday from 8am until 12 noon, each Friday from 8am until 12 noon and each Sunday from 9am until 5pm.

18. The child has since been spending time with the father in accordance with these interim orders.

19. The single expert report of Dr B was released to the parties on 17 January 2018.

20. At the time of Dr B’s report, X was only two years old. By the time the matter came to final hearing she was three and a half, and at the time of judgment she is already four years old. It seems that for almost her whole young life her parents have been at odds in respect of what care might be most suitable for her and what is in her best interests.

Dr B 

1. In her report, which is dated 16 January 2018, Dr B opined as follows[7]:

   It is my view that the introduction of overnight time would have to be managed in a developmentally sensitive manner and the parents need to demonstrate a commitment to managing conflict and having low stress exchanges at transition. In my view, the implementation of overnight time should only be considered when she is three years of age. At this stage, she is likely to have a better developed capacity to separate [without distress] from her mother.

   In my view, the implementation of overnight time should occur in a graduated manner. That is, X should initially spend one night per week overnight with her father after she has turned three years of age. This regime should continue for a period of 6 months after which X should spend two consecutive nights in the care of her father. Provided that the parents have managed to improve the exchanges at transition time and have improved their communication, then by the time X is four years of age she should be able to cope with periods of three consecutive nights in the care of the father. Beyond this, it is difficult for me to predict X’s development and reaction to such a regime.

   [7] Paragraphs 134 - 135

2. In her oral evidence, Dr B identified that the biggest risk to the child was the behaviour of her parents, and that the relevant question was whether the father and the mother can behave civilly towards each other. Dr B was of the opinion that the level of family violence alleged did not contra-indicate the parents coming into contact with each other. While she was of the opinion that the parents could organise changeover so that they did not come into contact with each other, it was really a matter for the parents to make an effort about overcoming the issue.

3. Dr B was of the opinion that the father has the competencies and abilities to parent X. He has not had long experiences of being a parent, but he was willing and capable of learning.

4. Given the passage of time between the date of the report and the time of hearing, and that X had not been spending overnight time with the father, Dr B’s recommendation changed such that she was still of the opinion that the child should spend one overnight time per week with the father. After a period of six months this should be increased to two nights in a row and then three. The three consecutive nights Dr B recommended were per fortnight. Dr B was of the view that three nights per week was substantially a shared care arrangement which is contraindicated by the parents’ lack of ability to communicate with each other. The purpose of this graduated time was to ensure that X could get used to spending overnight time with the father.

5. It was further Dr B’s opinion that once X started school, apart from alternate weekends with her father, she would benefit from one extra overnight in the other week.

Relevant Considerations

1. X is still very young. Whatever her views might be, they are given very little weight.  She will be starting school at the beginning of the 2021 school year. She is attending day-care. She is a bubbly, happy and intelligent young girl, who is loved by both her parents.

2. Changeovers and transition between households is still challenging. The mother remains hyper vigilant, which carries long term risks for X. If the mother is not persuaded and calmed, she may continue to parent X in this hyper vigilant fashion, which escalates the risk of anxiety for X. It was Dr B’s opinion that the mother would benefit from obtaining professional assistance to learn to tolerate and relax her vigilance about the father’s behaviour, which of itself did not pose any risks to X. 

3. It is the Court’s view that the level of toxicity between the parents is a matter which the parents can, individually and collectively, work on. There is evidence that by the time of the final hearing, the level of acrimony between them had abated.

1. The parties’ positions in respect of what time X is to spend with the father are not very far apart. The father’s proposal ties in with his work and professional commitments, as well as X’s day-care attendance. It is also mostly in line with the recommendations of Dr B.

2. The mother’s proposal is for slightly less time than recommended by the expert, including that overnight time does not start until 2020. It was submitted on her behalf that the father’s lack of consistency to date and his lack of commitment to the child were such that it was in X’s best interest to only spend limited day time with him, working to overnight by the commencement of 2020.

3. The recommendations of Dr B were such that at the time she was two years of age, it was recommended that she commence spending time with the father overnight from the time she was three. Those recommendations changed due to the fact that X had not yet commenced spending overnight time, and not for any other reason. There is no basis given the expert and other evidence in these proceedings to find that overnight time for X with her father should not commence immediately. The father has indicated that he is committed to undertaking the courses as suggested by Dr B and on improving his parenting skills. He has already demonstrated appropriate capacity to care for X, including the willingness to seek help when he thought it might be to X’s benefit.

4. Both the mother and the father are intelligent human beings. They are capable of curbing their behaviour for the benefit of their young child. They have now resolved their financial proceedings and they have come a long way in the parenting proceedings. It is the Court’s view that things will only get easier for them. They are certainly capable of behaving in a civil manner towards each other. If either of the parents finds it difficult to cope with the other, they have already heard the evidence of Dr B which suggests that they might benefit from some professional assistance in this regard. The mother proposes an order for the parents to attend counselling together. It is a sensible proposal and one which the Court embraces. Such counselling should assist the parties to be able to work together for X’s sake and to help each of them understand the other a little better. 

5. There have been some ugly incidents between the parents. The father proposes the changeovers occur at a contact centre or by agreement. The mother proposes changeover at the child’s day-care or at the local shopping centre. Where possible, changeovers should occur with the parents having the least contact with each other. This will lessen the risk to the child of being exposed to conflict. It will also help her transition between her parents, something which she appears to have struggled with to date.

6. The mother has sought to place the child’s name on the Airport Watch List. There is no evidence that either of the parents is a flight risk or that there is any real risk that the child might be taken out of the jurisdiction. No such order will be made. The parents should be able to each take the child on holidays provided there is agreement about this.

Parental Responsibility

1. Whilst the mother argued for an order for sole parental responsibility, the evidence does not support a finding that the presumption of equal shared parental responsibility has been rebutted.

2. The parents are capable of making shared decisions in respect of X’s long term needs. Even though their communication is not ideal, and noting that there is room for significant improvement in this area, it is still existent. X would certainly benefit from having the father’s input into important long term decisions in respect of her education, health, religion and other matters of long term impact.

3. It is appropriate and in the child’s best interests for the parents to have equal shared parental responsibility for X. The making of an order for equal shared parental responsibility, triggers the operation of s65DAA. The co-parenting relationship between the parents is such, that an order for equal time is contra-indicated and not in the child’s best interest.

4. The evidence however, does support an order for significant and substantial time, particularly once X is of school age. As such, the orders which the Court makes, do provide for X to spend significant and substantial time with the father.

Conclusion

1. For all of the above reasons, orders are made as set out at the forefront of these Reasons for Judgment.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date:  6 September 2019