Gaudet and Tibert
[2011] FMCAfam 233
•18 February 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GAUDET & TIBERT | [2011] FMCAfam 233 |
| FAMILY LAW – Children – parenting orders – residence – best interests of the child – parental responsibility – substantial and significant time – one child – boy aged ten years – equal time with each parent – where equal time with each parent would not be reasonably practicable. |
| Family Law Act 1975(Cth), ss.60CA, 60CC, 60C, 61DA, 61DB, 65DAA, 68L |
| McCall v Clark [2009] FamCAFC 92; (2009) 41 Fam LR 483; FLC 93-405 Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 |
| Applicant: | MR GAUDET |
| Respondent: | MS TIBERT |
| File Number: | SYC 49 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 4 to 6 May 2010 |
| Date of Last Submission: | 6 May 2010 |
| Delivered at: | Sydney |
| Delivered on: | 18 February 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Black |
| Solicitors for the Applicant: | R.D. Strang |
| Counsel for the Respondent: | Mr Siggins |
| Solicitors for the Respondent: | Mason Mia & Associates |
| Counsel for the Independent Children’s Lawyer | Ms Harris |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW |
ORDERS
All previous parenting orders are discharged.
The child [X] born [in] 2000 is to live with the applicant father.
The applicant father and the respondent mother are to have equal shared parental responsibility for the child [X].
The mother is to spend time with the child as follows:
(a)During school term:
(i)Each alternate weekend in [B] from no later than 9.00 pm on Friday until 6.00 pm on Sunday;
(ii)At the mother’s option, on one other weekend in each month, in Sydney, on either Saturday or Sunday, between the hours of 9.00 am and 6.00 pm, on giving one week’s notice to the father;
(iii)On the weekend that includes Mother’s Day from no later than 9.00 pm on the Friday until 6.00 pm on the Sunday; and
(iv)At other times as the parties shall agree.
(b)During school holidays with the exception of the Christmas/January school holidays:
(i)For half of the Autumn and Spring school holiday periods in each year, at such times as the parties shall agree and, in default of agreement, for the first half of the school holiday period;
(ii)For the entire Winter school holiday period in each year, concluding at 5.00 pm on the Saturday immediately prior to the commencement of the school term; and
(iii)At all other times as the parties shall agree.
Notwithstanding any other Order above, for the purpose of the Christmas/January school holidays, the child [X] is to spend one half of the holiday period with the mother and the other half with the father and in the absence of agreement:
(a)In 2011 and all odd numbered years thereafter, for the first half of the school holiday period from 2.00 pm on the Saturday immediately after the end of the school term with the mother and for the second half of the school holiday period with the father; and
(b)In 2012 and all even numbered years thereafter, for the first half of the school holiday period with the father and the second half of the school holiday period with the mother, concluding on Australia Day.
Unless the parties agree otherwise, for the purpose of changeover the father is to deliver the child [X] to the mother’s residence at the commencement of the mother’s time with him and the mother is to return the child to the father at the conclusion of the mother’s time with the child.
The child [X] will stay in the care of the father on the weekend that includes Father’s Day in each year and the mother’s time with the child will be suspended on that weekend.
For the purpose of communicating information between the parties the mother and father are to communicate as follows:
(a)By using a communication book for matters relating to the child which is to travel in the child’s bag for each period the child is spending time with the other parent; and
(b)By email and for this purpose the mother and father must exchange email addresses within seven (7) days of the date of these Orders.
Each parent must advise the other parent and keep the other parent advised of their current address and contact telephone numbers including both landline telephone and mobile telephone numbers and email addresses and advise the other parent of any changes to any of those details within seven (7) days of any such change.
Each parent is to have telephone communication with the child every Monday, Wednesday and Friday between the hours of 7.30 pm and 8.00 pm when the child is not in their respective care with the child to initiate the telephone call to the other parent on the Wednesday and the other parent is to initiate the call to the child on the Monday and the Friday.
The parent with whom the child is living or spending time on the day of the child’s birthday must ensure that the child is available to receive a telephone call from the other parent between the hours of 8.00 am and 8.15 am on that day.
The parent with whom the child is living or spending time must permit the child to telephone the other parent at all reasonable times requested by the child.
Each parent is to ensure that the other parent is kept informed by email of:
(a)The name, address and telephone number of any medical practitioner who treats the child;
(b)Any illness or injury suffered by the child while in the care of that parent;
(c)Any medication prescribed for the child;
(d)Any significant school or religious function that the child is to attend; and
(e)Any other matter relevant to the child’s welfare.
Within 14 days of the date of these orders the father is to do the following:
(a)Attend upon the child’s treating general practitioner to obtain a referral to a paediatrician suitable to assess and treat the child’s behavioural and bowel problems and a referral to obtain an x-ray of the child’s bowel for consideration by the paediatrician;
(b)Arrange an appointment with the paediatrician and ensure that the child attends that appointment;
(c)Inform the mother by email of the name and address of the paediatrician and the details of the appointment arranged;
(d)Ensure the child’s attendance upon a radiographer for the purpose of the x-ray;
(e)Collate copies of all medical treatment and assessment records of the child relevant to his behaviour and bowel problems including but not limited to reports by Dr C, Dr N, Ms D, [B] Hospital and [omitted] Dyslexia Centre and provide those documents to the paediatrician;
(f)Follow the recommendations of the paediatrician in the treatment of the child; and
(g)Pay the costs involved for the treatment of the child.
The father is to authorise the paediatrician to communicate with the mother in relation to any matter concerning the child’s health, treatment and ongoing consultations and assessments;
The mother may attend any of the consultations scheduled for the child.
The mother is to follow the recommendations of the paediatrician for the treatment of the child including administering the prescribed medication for the child.
The mother and father are to authorise the paediatrician to discuss the child’s treatment with his previous treating medical practitioners.
The Independent Children’s Lawyer is authorised to forward to the treating paediatrician copies of the reports by Mr G of July 2009 and April 2010 and for this purpose the father is to inform the Independent Children’s Lawyer in writing as to the details of the paediatrician to be consulted by the child.
The mother is to provide the father within 7 days of the date of these Orders copies of any reports, documents and assessments in her possession relating to the child’s educational requirements or progress and the father is to ensure that these documents are provided to the paediatrician to be consulted by the child.
In the event of the child’s being hospitalised or receiving specialist medical treatment the parent in whose care the child is at the time must notify the other parent as soon as is reasonably practicable.
The mother and the father are restrained from:
(a)making any critical or derogatory remarks to or about the other parent in the presence or hearing of the child or from permitting any third person to do so; and
(b)using any form of corporal or physical punishment on the child or permitting any third person to do so.
Before any further application is made to this Court or any other Court exercising jurisdiction under the Family Law Act 1975 for a variation of any of these Orders to take account of any changing needs or circumstances of the child or either of the parties the mother and father must participate in family dispute resolution with a family dispute resolution practitioner as defined by subsection 10G(1) of the Family Law Act 1975.
IT IS NOTED that publication of this judgment under the pseudonym Gaudet & Tibert is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 49 of 2009
| MR GAUDET |
Applicant
And
| MS TIBERT |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the father of a boy called [X], who is ten years old. He asks the Court to order that [X] should live with him. The mother opposes that order.
[X] is legally represented by a solicitor from Legal Aid NSW.
Orders Sought
The orders sought by the father are set out in his Outline of Case:
(1)That the father and mother have equal shared parental responsibility for the child of the parties namely [X] born [in] 2000.
(2)That the child live with the Father.
(3)That the child spend time with the Mother as follows:-
3.1during school terms on alternate weekends from 8.00 pm on Friday until 4.00 pm on Sunday;
3.2for one half of each gazetted school holiday period as agreed but failing agreement for the first half of each school holiday period;
3.3at other times as agreed between the parties.
(4)That the mother be permitted to communicate with the child at all reasonable times via telephone or email.
(5)That the parties be restrained from permitting the child to take Ritalin or any other ADHD medication except with the express written consent of the parties and the child’s paediatrician.
(6)Costs.
For her part, the mother seeks orders as set out in her Amended Response filed on 17th September 2009 and reiterated by her counsel, Mr Siggins, in the mother’s case outline:
(1)that all prior parenting orders relating to the child be discharged;
(2)that the parties have equal shared parental responsibility;
(3)that the child reside with the father from 8.00 pm on Friday to 5.00 pm on Sunday every third weekend during school terms;
(4)that the child shall spend time with the father for half of the school holiday periods;
(5)that the parties shall keep a communication book;
(6)that the child be assessed for the condition known as ADHD by Dr N, paediatrician; and
(7)upon provision of a written report from Dr N as to the use of Ritalin by the child, each parent shall adhere to the doctor’s recommendations.
The Independent Children’s Lawyer seeks a comprehensive set of orders, which were set out in a Minute of Proposed Orders handed up in Court by her counsel, Ms Harris, on the final day of the hearing. Those orders (summarised) are:
(1)That all previous orders be discharged.
(2)The child [X] live with the father.
(3)The mother and father have equal shared parental responsibility for the child.
(4)That the mother spend time with the child as follows:
(a)During school term:
(i)Each alternate weekend in [B];
(ii)At the mother’s option, on one (1) other weekend each month, in Sydney, on either Saturday or Sunday;
(iii)The weekend of Mother’s Day
(iv)At other times by agreement.
(b)During school holidays (excluding Christmas School Holidays):
(i)One half of the March/April and September/October school holidays;
(ii)For the entire June/July school holiday periods in each year;
(iii)At other times as agreed.
(5)Notwithstanding any other Order above:
(a)For Christmas School holidays, one half with the mother as agreed or, in the absence of agreement:
(i)for the first half in odd numbered years from 2:00 pm on the Saturday after the break-up of school; and
(ii)for the second half in even numbered years.
(6)Changeover to be at the mother’s residence at the commencement of the mother’s time with the child and the mother is to return the child to the father’s residence at the conclusion of her time with him.
(7)The child would be with the father on Father’s Day weekend each year.
(8)The parties are to use a communication book and communicate by email.
(9)The parties are to keep each other informed of their current addresses, telephone numbers and email addresses.
(10)Each parent may telephone the child on Monday, Wednesday and Friday of each week when the child is in the care of the other parent between 7:30 and 8:00 pm.
(11)The parent with who the child is living or staying on his birthday must ensure that he is available to receive a telephone call form the other parent between 8:00 am and 8:15 am.
(12)The parent with whom the child is living or spending time is to permit the other to ring the child at all reasonable times requested by the child.
(13)The parents are to keep each other informed of all medical matters, school or religious functions, addresses and other matters relevant to the child’s welfare.
(14)Within 14 days the father is to obtain a referral to a paediatrician to assess the child’s behaviour and bowel problems, provide all necessary information to the mother, obtain all relevant medical and treatment reports, take the child to the paediatrician, follow the paediatrician’s recommendations and meet all the necessary costs.
(15)The father should authorise the paediatrician to communicate with the mother about the child’s health, treatment and ongoing consultations and assessments, which consultations she is free to attend.
(16)The parties should be responsible for providing to the paediatrician:
(a)written authorities to discuss the child’s history of treatment with his previous medical providers; and
(b)reports, x-rays and other material in their possession in relation to the child’s health.
(17)The Independent Children’s Lawyer should be authorised to forward Mr G’s reports of July 2009 and April 2010 to the paediatrician.
(18)The mother is to provide to the father within 7 days copies of any reports, documentation and assessments in her possession relating to the child’s educational requirements which the father is to provide to the paediatrician.
(19)If the child is to be hospitalised or receive medical attention, the parent with whom the child is spending time must notify the other parent immediately.
(20)Each parent must notify the other if they are incapable of caring for the child if he is hospitalised or otherwise and place him in the care of the other parent.
(21)The parties are to be restrained from:
(a)making critical or derogatory remarks about the other in the presence or hearing of the child or permitting any third party to do so; or
(b)using any form of corporal or physical punishment on him or permitting anyone else to do so.
(22)Before any application is made to a court for variation of the orders to take account of the child’s changing needs or circumstances, each party must:
(a)attend counselling or mediation with a recognised organisation; or
(b)participate in family dispute resolution with a person authorised under section 10G of the Family Law Act.
Background
The father, who is the applicant, was born [in] 1974. The mother was born [in] 1977.
The parties started living together in 1997[1] or 1998[2]. The parties’ accounts vary as to the date that cohabitation commenced.
[1] Affidavit of Mr Gaudet 7.1.2009 at paragraph [4]
[2] Affidavit of [Ms Tibert] 27.1.2009 at paragraph [2]
There is one child of the relationship. [X] was born [in] 2000.
The parties separated in either November 2000[3] or in 2001[4]. Again, their accounts differ as to the date.
[3] Ibid at [9]
[4] Affidavit of Mr Gaudet 7.1.2009 at [5]
The mother moved from [G], where she had been living, to [B] in about January 2001. She has lived in [B] since then.
From January to September 2001 the mother would drive the child down to Sydney every three weeks so that the father could spend time with him.[5] The father states that he travelled from Sydney to [B] almost every week to see the child.[6]
[5] Affidavit of [Ms Tibert] 27.1.2009 at [15]
[6] Affidavit of Mr Gaudet 7.1.2009 at [15]
In October 2001 the father left Australia and lived and worked overseas until April 2004.
In late 2002 the father commenced a de facto relationship with his present partner, Ms M. Ms M gave evidence at the hearing.
The mother formed a new relationship with a man named Mr M. On [date omitted] 2003 she gave birth to a daughter, [Y], who is therefore the half sister of the child [X]. That relationship came to an end and the mother subsequently formed a relationship with Mr T, whom she has now married.
In April 2004 the father returned to Australia. He commenced seeing the child on alternate weekends and during school holidays.
In 2005 the mother became concerned about the child’s erratic behaviour and attended a six week parenting program, called [omitted], at [B Community Health Centre].
[X] commenced school in January 2006. He attended at the [H] primary school in [B].
In May 2006 the child’s general medical practitioner referred the child to a specialist, one Dr D, for a condition known as a “glue ear”. As a result, he had grommets inserted into his ears. The father was consulted and provided details of his private medical insurance.
The child’s challenging behaviour continued and in August or September 2006 the parties discussed the inadequate strategies used by the [H] School to deal with this behaviour. In about October 2006 the mother told the father that she had taken the child out of [H] and enrolled him in [S] School.[7]
[7] Affidavit of Mr Gaudet 7.1.2009 at [24]
The child’s behaviour worsened in early 2007. The mother conducted her own research on the effects of diet on children’s behaviour and put him on a “fail safe” diet. She spoke to the father about putting [X] on the drug Ritalin, but he was opposed to the idea.[8]
[8] Affidavit of Mr Gaudet 7.1.2009 at [27]
In May 2007 the child saw a paediatrician at [omitted] hospital in Sydney, a Dr C. The father arranged for him to see an educational consultant by the name of Ms D. She told the father that she did not think that [X] had Attention Deficit Hyperactivity Disorder (ADHD), but believed that he might have dyslexia. She also said he was one year behind in all aspects of his school work.[9]
[9] Affidavit of Mr Gaudet 7.1.2009 at [28]
Subsequently the child saw another paediatrician, Dr N. The mother informed the father of the outcome of these consultations and it was agreed that the child should see a psychologist.
Between July 2007 and January 2008 the child and the mother saw a child psychologist in [B], Ms H. The aim of the consultations was to provide strategies to manage the child’s behaviour.
By December 2007, some improvement had been seen. The child’s school report showed that his reading level had improved significantly and his behaviour at school had also improved.
In January 2008 the mother formed a new relationship with her current husband.
In June 2008 the child saw the paediatrician, Dr N, who suggested a six week trial of the drug Ritalin. The father did not support the idea but suggested that it may help if the child were to move to Sydney to live with him for a trial period.
In July 2008, with the agreement of the mother, child [X] moved to Sydney to live with the father and his partner. He commenced to attend [W] School. The father took him to the [omitted] Clinic for a dyslexia assessment and he was prescribed with blue-lensed glasses to assist him with his reading and writing. His reading ability subsequently improved greatly.[10]
[10] Affidavit of Mr Gaudet 7.1.2009 at [38]
The parties agreed that the child would return to [B] to spend time with the mother every third weekend.
The parties agreed that [X] would spend time with the mother in [B] over Christmas 2008. The child was due to be returned to the father on 24th December, but the mother sent a text message saying that she would not return him to the father’s care because of the allegations about the way the father punished the child for not completing his homework.[11] The child told the mother that his father had used physical chastisement on him on various occasions. The mother did not return [X] to the father’s care.
[11] Affidavit of Mr Gaudet 7.1.2009 at [63]
The mother enrolled [X] at [S] School at the beginning of the first school term in January 2009.
Meanwhile, on 7th January 2009 the father had commenced proceedings in this Court seeking orders that:
a)The parties should have equal shared parental responsibility for [X];
b)[X] should live with him;
c)The child should spend time with the mother:
i)on alternate weekends during school terms;
ii)half the school holidays; and
iii)other times by agreement.
d)The mother to be permitted communication with the child by telephone and email; and
e)That the parties be restrained from permitting the child to take Ritalin or any other ADHD medication without consent of the parties and the child’s paediatrician.
On 30th January 2009 Altobelli FM ordered that the parties attend a Child Dispute Conference with a Family Consultant. He also ordered that the child’s interests should be independently represented by a lawyer under the provisions of s.68L of the Family Law Act. His Honour also made interim orders that:
a)The parties should have equal shared parental responsibility for the child;
b)The child should live with the father;
c)The child should spend time with the mother:
i)each alternate weekend in [B];
ii)for the purposes of changeover the father would deliver the child to the mother’s home in [B] at the commencement of the time and the mother would return the child to the father’s home at the conclusion of the time; and
iii)at the mother’s option, on one other weekend each month, on either Saturday or Sunday between 9:00 am and 5:00 pm with the mother giving one week’s notice.
d)The parties were restrained from:
i)speaking about the other parent in a negative, offensive or unpleasant fashion;
ii)discussing any proceedings between the parents in the child’s presence;
iii)using corporal punishment; or
iv)allowing the child to use or take any ADHD medication without consent of both the mother and the father; and
e)The father and the mother were to communicate with the child by telephone and email.
The child returned to the care of the father on 1st February 2009. He returned to school at [W] School.
The parties attended the Child Dispute Conference on 27th February 2009. Agreement was reached about parental responsibility but there was no agreement about with whom the child should live or spend time. The Family Consultant recommended the preparation of a Family Report.
On 13th March 2009 Orchiston FM[12] ordered a Family Report to be prepared and listed the application for final hearing on 17th and 18th August 2009.
[12] As she then was
The final hearing did not proceed on 17th August as the mother’s solicitors ceased acting for her a week beforehand. The hearing dates were vacated and the mother obtained other representation later that month.
On 20th August 2009 Baumann FM adjourned the application for hearing on 15th and 16th October 2009.
On 15th October 2009 Wilson FM[13] adjourned the final hearing and made interim parenting orders by consent. Those interim orders provided that (summarised):
i)[X] would have telephone communication with the mother from 6:30 pm to 7:30 pm every Tuesday, Thursday, Friday and Saturday when he was not with the mother;
ii)That he would telephone communication with the father from 6:30 pm to 7:30 pm every Tuesday, Thursday and Saturday when he was not with the father;
iii)That the parties were to ensure that for all periods of communication [X] was to enjoy uninterrupted, uninhibited telephone communication and was afforded privacy for his calls;
iv)For all telephone communication, the parent not with the child was to initiate the phone call to the other parent’s personal mobile phone and the parent receiving the call was to ensure that their telephone was charged and available to receive calls:
v)The parties were each to spend further time with the child in December 2009 and January 2010; and
vi)The child would spend half of the school holidays with each parent.
[13] As he then was
On 18th November 2009 the mother gave birth to a daughter, named [Y]. The mother married Mr T on [date omitted] 2010 and consequently changed her surname to “Tibert”.
The application proceeded to final hearing in May 2010.
Issues
The Independent Children’s Lawyer has identified the following issues:
a)With whom the child is to live;
b)The separation of the child from his younger sibling (half-sister) if he were to remain living with the father;
c)The possibility that the child suffers from Attention Deficit Hyperactivity Disorder (ADHD);
d)The ability of the father to consider the possibility that the child suffers from ADHD and the father’s willingness to accommodate his treatment;
e)The father’s proposed medical treatment in the alternative to Ritalin upon a finding of ADHD;
f)The ability of the parents and the father’s partner to promote and continue the relationship between the child and his parents;
g)The likelihood of compliance with the orders by the father;
h)Specific issues, such as travel arrangements and their impact on other siblings; and
i)The parenting skills of both parties.
Counsel for the mother also identified the competence, reliability, balance and bias of the report on the child [X] by an educational consultant, Ms D, as an issue.
Evidence
The father relied on his affidavits sworn:
a)7th January 2009;
b)29th January 2009; and
c)2nd August 2009.
He gave oral evidence and was cross-examined by counsel for the mother. He said that he and his partner had recently had a child, a little girl, who was born [in] 2010. They lived in a two-bedroom apartment. [X] has his own bedroom.
In cross-examination, the father conceded that he had used corporal punishment on the child, who had had behavioural problems. There was an aspect of the child’s health that was causing him difficulty, which had to do with his bowels. The father denied that the child suffered from chronic constipation, at least not when he was living with them in Sydney. He was aware that the child had had an ongoing problem with constipation and had had treatment for it.
The child was going every second weekend to [B] to stay with his mother. The father said that he took the child up on a Friday afternoon and the mother dropped him off about 5:00 pm on the Sunday.
The father said that his partner had been very involved with [X] over the time he had been staying with them. He did not believe that there would be any reduction in the time she spent with [X], saying “Nothing has changed”. He said that she had taken six months maternity leave from work.
The father went on to say that he was very conscious of the need for [X] to follow a routine. His opinion was that [X] needed a structured, ordered routine to help him with his learning difficulties. He said that the mother did not provide that structure for the child. There was not much emphasis placed on education in her household.
In cross examination by counsel for the Independent Children’s Lawyer, Ms Harris, the father described the actions he had taken in since [X] had been in his care to address his learning difficulties. He said that he had prepared a chart that listed the things that [X] had to do. Before coming to Sydney, [X] had had problems with his morning routine.
The father went on to say that [X] was “a different child”. Now, as soon as the alarm goes off in the morning, he is up and into his routine. He gets a gold star on his chart if he does well. They had spoken to the school about the chart and the school had instituted a similar system.
The father also said that he had not taken [X] back to see Dr C, the paediatrician. The Educational Consultant had said that the child did not have ADHD; he was just behind at school.
Again, the father agreed that [X] was aware that there was a lack of trust between his parents. He said that what could be done was for them to have a more open dialogue, and he agreed that he and the mother were both doing the best they could, but until they started pulling in the one direction, they would “tear the child apart”.
The father also conceded that there was a fundamental communication problem between him and the mother. He also agreed that he had not provided information to her, nor had he involved her in going to the [omitted] Centre.
The father agreed that both parents should have long term parental responsibility for [X].
When asked about the fact that the child’s half-sister, [Y], lived in the mother’s home, the father stated that [X] would always have a half sibling in the other place.
The father also relied on the affidavit of the father’s partner, Ms M, sworn on 2nd August 2009. Ms M deposed that she had been in a de facto relationship with the father since late 2002. She has known the child since he was born. She regards her relationship with the father as long-term.
It is Ms M’s evidence that she has had an active role with the child, particularly with his morning routine and in liaising with the teachers at his school. She set out in some detail in her affidavit her meetings with various teachers and the school counsellor about the child’s educational needs. She feels that she has a close relationship with the child.[14]
[14] Affidavit of Ms M sworn 2.8.2009 at paragraph [19]
In cross-examination, Ms M expressed the opinion that [X] did not have behavioural problems. She would predominantly do the parent-teacher communication with the school, because of her particular working hours. She said the child was a year behind in his learning but denied that that was still the case.
Ms M said that she knew the child had dyslexia, as that had recently been diagnosed. She thought that he may have ADHD.
In cross-examination by Ms Harris of counsel, Ms M said that she was aware of the child’s bowel problem from experience in her own home. She said:
“He holds it in when he is busy playing and has accidents”.
The father also relied on the affidavit of Ms D, the Educational Consultant, but only as to a table annexed. Ms D was not required for cross-examination.
The mother relied on her:
a)her affidavits sworn 27th January 2009, 29th September 2009 and 7th April 2010;
b)the affidavits of Mr T sworn 28th September 2009 and 6th April 2010;
c)the affidavit of Ms P sworn 29th September 2009;
d)the affidavit of Mr P sworn 24th September 2009; and
e)the affidavit of Ms S sworn 27th January 2009.
Ms P is the mother’s sister. She was not required for cross-examination.
Mr P is the mother’s father, i.e. the child’s maternal grandfather. He was not required for cross-examination.
Ms S is the mother’s stepmother. She is married to the mother’s father, Mr P. She was not required for cross-examination.
The mother gave oral evidence. In cross-examination by counsel for the father, she said that the child had been suffering from stomach pains and chronic constipation. He had been having stomach pains since May 2009 and was diagnosed with constipation in September of that year.
The mother further said that communication with the father deteriorated almost as soon as [X] went to Sydney. Currently, there was only communication by text message. She denied that she avoided speaking to the father but did say that she mainly spoke to Ms M.
The mother said that she had only been once to the child’s school and felt “excluded” by it; she no longer receives newsletters. However, she said she had no problems with the school and it was a “fine” school and the child’s current teacher seemed “lovely”.
In cross-examination by counsel for the Independent Children’s Lawyer, Ms Harris, the mother said that she had seen copies of letters from the school to the father warning that the child could be suspended due to his behaviour. She said that she would be happy to use a communication book with the father.
One matter that concerned the mother was the child’s bowel problem, which she believed needed to be investigated very thoroughly. She suggested that having access to a Website called “Beating Sneaky Poo” would have assisted the father in dealing with this issue.
The mother’s new husband, Mr T, gave short oral evidence. He said that he had never seen the mother smacking the child. He said that generally [X] was a “good boy” who just lacked concentration.
Family Reports
A Family Report under the provisions of s 62G of the Family Law Act was prepared by a Regulation 7 Family Consultant, Mr G. The Report was subsequently updated. The first report was dated 2nd July 2009 and released on 6th July 2009. An updated report was completed on 7th April 2010 and released that same day.
For the purposes of the Family Report, Mr G interviewed both parents, their partners[15] and the child. The interviews took place on 24th June 2009 and 24th March 2010[16]. The Family Consultant noted a positive interaction between [X] and his parents, and also with their partners, without indicating a preference for one over the other.[17] At the interview on 24th June 2009, the child indicated a wish to return to [B]:
His stated reasons were that he had lived there since he was a baby and missed his friends.[18]
[15] As they then were
[16] Although the date is given as “24/3/2009”, which is clearly a typographical error
[17] Family Report 2.7.2009 at page 10, paragraph [41]
[18] Ibid page 11 [45]
When [X] was interviewed the following year, he expressed a preference to stay living with his father in Sydney:
26. When asked if he still wanted to live with his mother in [B], [X][19] said he had changed his mind this year and wished to stay living with his father. His nominated reasons were his new found friends at the present school, and feeling happier, now that his father did not smack him anymore.[20]
[19] The child – abbreviation of “[X]”
[20] Family Report 7.4.2010 at [26]
The Family Consultant also recorded that the child stated he would be “happy to live with either parent the judge decided upon, as long as he continued to visit the other home every second weekend.”[21]
[21] Ibid
Mr G gave the child a brief time to interact with his mother, her partner and the new baby, to see if his stated preference would change:
31. When they left the room, he was again asked about his residence preference. He repeated that he wanted to stay living with his father.[22]
[22] Ibid at [31]
Mr G gave oral evidence. In cross-examination by counsel for the Independent Children’s Lawyer, he said that the child had expressed a change of views as to where he wished to live, although each time the views were not maturely expressed. The child reported feeling strange about the actions of his mother in burying some money in a chip packet for him in case he wished to leave his father.
Mr G was asked whether moving back to [B] would set the child back in his schooling, and did not disagree, noting that he had been living in Sydney for almost two years at that stage.
Mr G noted also that the father was still of the view that there was still a lot of room for improvement in the child’s academic ability, he was showing improvement. Socially, he was getting along a lost better.
It was the Family Consultant’s view that the child should go back to a paediatrician to be tested for ADHD.
Submissions
Counsel for the Independent Children’s Lawyer submitted that the child could not reside predominantly in two households but only in one, because of the distance involved. Ms Harris submitted that equal shared parental responsibility was important because each parent and their partners had a lot to offer the child.
However, equal time with each parent is impractical because the mother lives in [B] and the father lives in Sydney. The Court was asked to note the views expressed by the child, although Mr G was unclear as to the child’s motivation and thought his view was not maturely expressed. Not much weight should be given to the child’s views.
It was the submission of the Independent Children’s Lawyer that [X] should remaining living with the father.
Counsel for the mother, Mr Siggins, submitted that the child should return to live with the mother, who had shown a long and ongoing consideration of the child’s issues. By comparison, the father had shown a selective approach to the child’s problems.
The mother’s submission is that the child should return to live with her with significant with the father.
Counsel for the father, Ms Black, submitted that her client agreed with the recommendations of the Independent Children’s Lawyer, with a few, relatively minor, variations. There was a need for the child to keep up his sporting activities, which needed top be taken into account if the mother was seeking to exercise a choice to spend an extra weekend with the child in Sydney. It was also suggested that the time for making telephone calls should be changed.
The Applicable Law
Section 60CA of the Family Law Act provides that in deciding whether to make a parenting order the Court must regard the best interests of the child as the paramount consideration. The Court determines what is in the child’s best interests by considering the matters set out in subsections 60CC(2) (the primary considerations) and 60CC(3) (additional considerations).
The Court is required by subsection 60CC(4) to consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent. Further, where the parties have separated, as they have in this case, the Court must have regard to events that have happened and circumstances that have existed since the separation occurred (see s 60CC(4A)).
I have considered all of those matters.
It is provided by subsection 61C(1) of the Act that each of the parents of a child who is not 18 has parental responsibility for the child. When making a parenting order, the Court is required by subsection 61DA(1) to apply a presumption that it is in the best interests of the child for his[23] parents to have equal shared parental responsibility for the child.
[23] In this case
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with one of the parents) has engaged in:
a)abuse of the child or another child who was a member of the family; or
b)family violence.
In making a final parenting order, the Court must disregard the allocation of parental responsibility made in any interim order (see s.61DB).
If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, the Court is required by subsection 65DAA(1) of the Act to consider whether:
a)the child spending equal time with each parent would be in his best interests; and
b)whether such an arrangement would be reasonably practicable.
If the Court does not make such an order, subsection 65DAA(2) provides that the Court must consider:
a)whether spending substantial and significant time with each of his parents would be in the child’s best interests; and
b)whether it would be reasonably practicable.
Substantial and significant time is defined by subsection 65DAA(3) to include days that fall on weekends and holidays and also days that do not.
I have considered all of those matters.
Conclusions
This is a case where the communication between the parents has been strained for some time. The child has lived with his mother in [B] for most of his life, but has lived with his father in Sydney for about two years. The parents have re-partnered and have had more children. The matter has been complicated further by the child’s:
a)behavioural problems;
b)academic difficulties; and
c)bowel problems.
The methods used by the parents to come to grips with these issues have not always coincided.
The best interests of this child must be the paramount consideration. Subsection 60CC(1) requires the Court to determine what his best interests are by considering the matters in s 60CC(2) and 60CC(3).
The primary considerations are:
a)the benefit to [X] of having a meaningful relationship with both of his parents (see McCall v Clark[24] at [117]-[122]); and
b)the need to protect him from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
[24] [2009] FamCAFC 92; (2009) 41 Fam LR 483; FLC 93-405
A meaningful relationship is one that is “significant”, which is generally used as a synonym for “important” and “of consequence” (see Mazorski v Albright[25] at [26]).
[25] [2007] FamCA 520; (2007) 37 Fam LR 518
[X] appears to have a meaningful relationship with each of his parents. This appears to be clear from the two Family Reports.
The issue of abuse was raised by the mother when she declined to return [X] to his father on Christmas Eve, 2008, because of allegations that the father had used severe corporal punishment on the child. Interim orders were made by Altobelli FM on 30th January 2009 restraining the parties from using corporal punishment on [X], and [X] has subsequently reported to the Family Consultant that he was happier living in his father’s home “now that his father did not smack him anymore.”[26]
[26] Family Report 7.4.2010 at [26]
The Family Consultant noted in his updated Family Report that the child had reported that his mother still smacked him:
25. [X] was then asked if his parents still hit him when he misbehaved. He said his father did not, but his mother did on occasion, and sometimes they were “hard smacks”. He claimed [Mr T][27] never hit him but he sometimes smacked his own children and [Y] (i.e. [Y]).[28]
[27] The mother’s husband
[28] Family Report 7.4.2010 at [25]
I am satisfied that there is no risk of harm to the child in the father’s household. It is a matter of some concern that the mother is reported as having used corporal punishment on the child, even after the orders made by the Court, but I am not satisfied that there is an unacceptable risk of harm to the child in the mother’s household.
The first of the additional considerations to which the Court is obliged to have regard is whether there any views expressed by the child and any factors, such as his maturity or level of understanding, that the Court would think are relevant to the weight it should give those views.[29]
[29] See s.60CC(3)(a)
Here, [X] originally said he wanted to return to live in [B], but when he was re-interviewed some nine months later, he said that he had changed his mind. His clear preference was to remain living with his father. That said, the child was not yet ten years old when he made those comments, and Mr G told the Court that his views were not maturely expressed.
Counsel for the Independent Children’s Lawyer submitted that the Court should not put a great deal of weight on the child’s views. In my view, the child’s views should not be ignored, but they should only be given limited weight in the circumstances.
The child is reported to have a good relationship with each of his parents. He also appears to have formed a good relationship both with the father’s partner and the mother’s new husband. He has two half sisters living with his mother and a half sister living with his father, and he appears to have an appropriate sibling relationship with each of those children. The youngest two, of course, are still only little babies.
The child’s parents have negative views of each other’s parenting skills, although they are not entirely lacking in understanding of the need to facilitate and encourage a close and continuing relationship between [X] and the other parent. The father’s partner, Ms M, appears to do a lot of the communication with the mother about the child, which may well be a way of avoiding friction between the parties.
The child’s circumstances since 2008 are that he has been living in the household of his father and his father’s partner and attending [W] School. If he were to return to live with his mother in [B], this would be a significant change. As he appears to be settled in his father’s home, it would appear not to be in his best interests to move back to his mother’s home on a full-time basis.
It is, of course, the fact that he has half sisters in each household, two in [B] and one in Sydney. Either way, he is going to be separated from at least one of them. It is important that the parents realise that it is important, not only for [X] but also for the other siblings, that they remain in regular contact.
There is some practical difficulty and expense in [X] spending time and communicating with his mother whilst he is living with his father. The father lives in Sydney and the mother lives in [B]. Depending on the traffic, the journey between one parent’s home and the other could take a good three hours or more. The parents have been travelling between Sydney and [B] on a regular and frequent basis for years now and are no doubt used to the trip, but there is still some distance involved. It is one factor that makes an equal time shared care arrangement between the parents impracticable, in my view.
The parents, despite their differences of opinion, have a capacity to provide for the child’s needs. The father has introduced a program that involves a set routine to give some stability and order into the child’s life, and it appears to have assisted him in his behaviour at school and his academic progress. The father does not believe that the mother entirely supports this program, whilst the mother is apparently of the view that the father has been too strict.
The mother’s extraordinary and emotional action in informing the child that she had buried some money in a chip packet in case he needed money in an emergency seems to have had the opposite effect on the child than she apparently intended. He is reported by the Family Consultant as feeling “strange” about this action, and it hardly sends an appropriate message to the child about his position in his father’s household.
The Court must consider the child’s maturity, sex, lifestyle and background.[30] [X] was born [in] 2000. He is a boy aged ten. He will reach the age of eleven in May 2011. He lives in a family environment that is effectively part of mainstream Australian culture, although the father has a Fijian heritage in his background, which is a matter which is of relevance and some importance to this child.
[30] See s 60CC(3)(g)
[X] is neither an Aboriginal child nor a Torres Strait Islander.[31]
[31] See s 60CC(3)(h)
The attitude to the child and to the responsibilities of parenthood demonstrated by each of [X]’s parents has been a subject of a great amount of evidence in this matter. This is not a case where one or other parent has attempted to avoid the responsibility for dealing with this child and his particular medical, educational and behavioural issues. The difficulty is that they have both adopted very firm views which have led to their taking differing approaches to deciding what is right for this child. It should not be overlooked that they discussed [X]’s behavioural issues whilst he was at school at [B] and agreed that [X] should live with the father and attend school in [W] as a way of dealing with his behavioural issues and his inability to keep up with his schoolwork.
The issue of family violence has been covered. I will make an order restraining either party from using corporal punishment on the child. It is noteworthy that the father stopped smacking the child after the interim order made on 30th January 2009 and the child reported to the Family Consultant in early 2010 that this was one reasons why he felt happier living in his father’s home.
There are no family violence orders in force.
It would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child (see s 60CC(3)(l)). In my view, an order that continues the child’s residence in the home of his father is more likely to achieve that aim. It does appear that the child has benefited from the father’s imposition of a set routine and structure in his life, and it also appears that attendance at [W] School has been beneficial for [X]. To her credit, the mother conceded in her evidence that she thought it was “a fine school”.
The evidence leads to the view that the father’s partner, Ms M, has played an active and positive role in dealing with a lot of the day to day matters concerning [X]’s education at [W] School. I formed a favourable view of her evidence when she was cross-examined.
It is relevant that [X]’s medical and behavioural issues are not entirely resolved. There will be an ongoing need for him to deal with a paediatrician and other medical professionals, and the father will need to make the necessary arrangements in this regard. The mother must be kept informed and be a part of the whole process, as she has the ability and willingness and contribute. I agree with the recommendations of the Independent Children’s Lawyer, which I consider to be well thought out.
The Court notes that the child’s parents separated a number of years ago, when he was still very young, and a number of events have happened since then. The circumstances that exist at present are very different from those that applied when the parties have separated (see s.60CC (4A)).
The mother left Sydney and moved to [B] with the child. She formed a relationship with Mr M and had a child by him, [X]’s half sister [Y]. That relationship ended and the mother subsequently formed a relationship with Mr T, who has children from an earlier relationship. She has since had a child by him, [X]’s half sister [Z]. The mother has since married Mr T.
The father has formed a further permanent relationship with Ms M. They have since had a child, a half sister for [X].
There have been many changes since the parties separated.
The Court must consider the presumption that it is in [X]’s best interests for his parents to have equal shared parental responsibility for him. The Independent Children’s Lawyer recommends that they should have equal shared parental responsibility. Both parents seek such an order.
I am satisfied that it is in the best interests of this child that his parents should have equal shared parental responsibility for him and I will order accordingly.
The Court is then obliged to consider whether, as provided by subsection 65DAA(1) of the Act:
a)it would be in [X]’s best interests for him to spend equal time with each of his parents; and
b)whether spending equal time with each of his parents is reasonably practicable.
It is abundantly clear that it is just not reasonably practicable for [X] to spend equal time with each parent, because one lives in [B] and the other lives in Sydney. They live too far away from each other.
It follows, then, that an equal time arrangement with each parent would not be in his best interests. He can only attend the one school. It would be disastrous and absurd for [X] to attend school in both [W] and [B]. His improvement in the academic area and in his behaviour would easily be lost.
This is also a case where the parents’ relationship has many negative elements and communication has been poor. Such matters are contra-indicators of an equal time arrangement.
Where the Court makes a parenting order providing that the child’s parents are to have equal shared parental responsibility but does not make an order that the child is to spend equal time with each of his parents, the Court must consider whether spending substantial and significant time with each of his parents would be:
a)in his best interests; and
b)reasonably practicable.
The “tyranny of distance” between Sydney and [B] is sufficient to rule out any notion of such an arrangement being reasonably practicable. Weekends and school holidays are feasible, but anything more than that is going to be unworkable. This child does not need to spend more time travelling long distances in a motor car.
This child’s best interests will be served by continuing the present arrangements. They will be better served if his parents communicate more freely and facilitate arrangements for him to spend time not only with them but with his three younger sisters.
I certify that the preceding one hundred and thirty-six (136) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 21 March 2011
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