Geriakakis and Geriakakis
[2008] FamCA 1277
•25 August 2008
FAMILY COURT OF AUSTRALIA
| GERIAKAKIS & GERIAKAKIS | [2008] FamCA 1277 |
| FAMILY LAW – CHILDREN – Equal shared parental responsibility – equal or substantial and significant time – meaningful relationship with both parents – where young child – where mother is primary carer and attachment figure – where mother argued the father sought to increase time as a way of reducing child support – where the father has always paid appropriate child support – where the submission lacked any proper factual foundation – where the mother does not appear genuinely committed to encourage and facilitate a relationship between the child and father – orders made for a staged increase in the child’s time with the father |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 61B, 61C, 61DA, 64B, 65AA, 65DAA |
| Bolitho v Cohen (2005) FLC 93-244 Goode & Goode (2006) FLC 93-286 |
| APPLICANT: | Mr Geriakakis |
| RESPONDENT: | Ms Geriakakis |
| FILE NUMBER: | (P)SYF | 2078 | of | 2006 |
| DATE DELIVERED: | 25 August 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATES: | 18, 19 and 21August 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Levy |
| SOLICITOR FOR THE APPLICANT: | Champion Legal |
| COUNSEL FOR THE RESPONDENT: | Ms Bateman |
| SOLICITOR FOR THE RESPONDENT: | Bannister Kyriacou Nasser |
Orders
That all prior parenting orders are discharged.
That the applicant father and respondent mother have equal shared parental responsibility for N born … May 2005 (“the child”).
That the child live with the father as follows:
(a) Commencing forthwith and continuing until 11 September 2008:
(i)from 9.00 am until 6.00 pm each Sunday; and
(ii)from 3.30 pm until 7.00 pm each Thursday.
(b) Commencing 12 September 2008 and continuing until 2 December 2008:
(i)each Friday from 4.30 pm until 6.00 pm Saturday; and
(ii)each Monday from 3.30 pm until 7.00 pm.
(c) Commencing 3 December 2008 and continuing until 4 June 2009:
(i)each Friday from 4.30 pm until 12.00 noon Sunday (including the Greek Orthodox Easter weekend);
(ii)from 3.00 pm 25 December 2008 until 6.00 pm on 27 December 2008 (with the father’s time to which he is otherwise entitled from 6.00 pm on 27 December 2008 until 12.00 noon on 28 December 2008 suspended);
(iii)from 4.30 pm on 6 January 2009 until 4.30 pm on 7 January 2009; and
(iv)commencing 13 January 2009 and during the remainder of the Christmas 2008/09 school holidays each Tuesday from 9.00 am to 6.00 pm; and
(v)during the remaining school holidays each Tuesday from 9.00 am until 6.00 pm Wednesday.
(d) Commencing 5 June 2009:
(i)each Friday from 4.30 pm until 6.00 pm Sunday; and
(ii)during school holidays each Tuesday from 9.00 am until 6.00 pm Wednesday.
(e) Commencing from 1 January 2010:
(i)each Friday from 4.30 pm until 6.00 pm Sunday;
(ii)from 4.30 pm on 6 January 2010 until 7.30 pm on 7 January 2010;
(iii)for Greek Orthodox Easter 2010 from 9.00 am Good Friday until 12.00 noon Easter Saturday;
(iv)until order 3(e)(v) commences during school holidays from 9.00 am each Tuesday until 6.00 pm Wednesday;
(v)commencing at the beginning of end of Term 1 in 2010 New South Wales gazetted school holidays the father’s time pursuant to 3(e)(i) is suspended during those school holidays and the father shall have the child for the first week of each of the shorter school holiday periods.
(vi)for the first two weeks and the fourth week of the New South Wales gazetted Christmas 2010 school holidays periods during which periods the father’s time pursuant to 3(e)(i) is suspended.
(f)From when the child starts school or 1 January 2011 whichever first occurs:
(i)commencing from the first weekend of the school year from 4.30 pm Friday until 2.00 pm Saturday each alternate weekend;
(ii)commencing from the second weekend of the school year from 4.30 pm Friday until 8.30 am Monday each alternate weekend;
(iii)for one half of each holidays, being the first half in the year this order commences, the second half in the following year and alternating annually thereafter during which periods the father’s time pursuant to order 3(f)(i) and (ii) is suspended.
That the child lives with the mother at all other times.
Each party may contact the child by telephone once on each day that the child does not spend time with that party. The father shall telephone the mother’s home at times when she is not at work. In the event the child not available to take the telephone call the parent in whose care the child then is shall cause him to return the telephone call the same day.
Unless otherwise provided for in these orders the mother’s time with the child shall be suspended on the following occasions if the child is living with her pursuant to Order 4:
(a)from 5.00 pm Saturday until 5.00 pm Sunday on the Father’s Day weekend (this order does not operate in 2009);
(b)from the cessation of school until 8.00 pm on the child’s birthday, the child’s name day, the father’s birthday and the father’s name day if it falls on a school day (these provisions only operate if by virtue of the above orders the child is not otherwise on the father’s care);
(c)from 2.00 pm until 8.00 pm on the child’s birthday, the child’s name day, the father’s birthday, and the father’s name day if it falls on a non school day (these provisions only operate if by virtue of the above orders the child is not otherwise on the father’s care);
(d)for Greek Orthodox Easter 2012, from 9.00 am Good Friday until 12.00 noon Easter Saturday and each alternate Greek Easter thereafter;
(e)for Greek Orthodox Easter 2011, from 12 noon Easter Saturday until 6.00 pm Easter Sunday and each alternate Greek Easter thereafter;
(f)for Christmas 2010, from 5.00 pm Christmas Eve until 3.00 pm Christmas Day and each alternate year thereafter; and
(g)for Christmas 2011, from 3.00 pm Christmas Day until 5.00 pm Boxing Day and each alternate year thereafter.
Unless otherwise provided for in these orders the father’s time with the child shall be suspended on the following occasions if the child is living with him pursuant to Order 3:
(a)from 5.00 pm Saturday on the Mother’s Day weekend and until the child is next due to come into the fathers care;
(b)from the cessation of school until 8.00 pm on the child’s birthday and the child’s name day (these orders do not operate until 2011), the mother’s birthday and the mother’s name day if it falls on a school day;
(c)from 2.00 pm until 8.00 pm on the child’s birthday and the child’s name day (these orders do not operate until 2011), the mother’s birthday and the mother’s name day if it falls on a non school day;
(d)for Greek Orthodox Easter 2010, from 12.00 noon Easter Saturday until 6.00 pm Easter Sunday, and each alternate Greek Easter thereafter;
(e)for Greek Orthodox Easter 2011, from 9.00 am Good Friday until 12.00 noon Easter Saturday, and each alternate Greek Easter thereafter;
(f)for Christmas 2010, from 5.00 pm Christmas Eve until 3.00 pm Christmas Day and each alternate year thereafter;
(g)for Christmas 2011, from 3.00 pm Christmas Day until 5.00 pm Boxing Day and each alternate thereafter.
That each party:
(a)Notify the other party, as soon as possible and in any event within 12 hours, of any serious medical condition, injury and/or illness suffered by the child or any hospitalisation of the child.
(b)Keep the other parent notified of their landline telephone number and residential address and provide updates of any changes in these in a timely manner, and within 7 days of any change.
(c)Notify the other party of the name, address and telephone number of the child’s treating doctor and/or specialist doctor, and authorise such doctor, in writing, to release to the other party particulars of the child’s health or treatment at any time requested by that party.
(d)Shall consult with the other party in relation to enrolling the child in any preschool or school but shall not enrol the child without the prior written consent of the other party.
(e)Ensure that both parties’ details are included on any enrolment form before it is submitted to the relevant school.
(f)Ensure that both parties’ are nominated as an emergency contact on any documentation relevant to the child including but not limited to medical, schooling, extra curricular activities.
(g)Authorise the child’s preschool/schools to forward copies of all school reports, newsletters and other curricular usually forwarded to parents, be forwarded to both parties.
(h)Notify the other party in writing and within 7 days of any proposed travel interstate with the child.
(i)Be entitled to attend all day care, preschool, school, sporting, social and religious events involving the child where a parent is normally entitled to be present.
That the father and the mother are restrained from taking the child to any counsellor, psychologist, psychiatrist, for the purpose of counselling, investigation or therapy without the prior written consent of the other parent or leave of the Court.
Other than as provided for below on those occasions when a period during which the child spend times with his father commences in the afternoon, the mother shall deliver the child to the father at his home.
On those occasions when the father’s time with the child commences in the morning, the father shall collect the child from the mother or her nominee at the mother’s home.
The father shall return the child to the mother’s home at the end of each period the child spends with him.
On those occasions when the father’s time finishes at 8.30 am on Monday mornings, the father or his nominee shall deliver the child to school.
In the event a party is unable to personally deliver or collect the child in accordance with these orders, it is their responsibility to make appropriate alternate arrangements for the child’s collection or return, whichever is applicable.
That until order 3(e)(v) becomes operative the mother may twice annually (in each 12 month period) suspend the father’s weekend visit with the child. The following conditions apply to this order:
(a) The mother gives the father not less than 21 days written notice.
(b)The period suspended does not mean that the father and child will miss out on a special occasion.
(c)The father has make-up time at a time of his choosing but not added to another period provided for in the orders and the father gives the mother 21 days written notice of the make-up time. The make-up period does not mean that the mother and child will miss out on a special occasion.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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.
All outstanding applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Geriakakis & Geriakakis is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: (P)SYF 2078 of 2006
| MR GERIAKAKIS |
Applicant
And
| MS GERIAKAKIS |
Respondent
REASONS FOR JUDGMENT
These reasons were delivered orally.
These proceedings concern the living arrangements for the party's only child, N, born in May 2005. The financial component of the case settled so that I was left to determine only the parenting applications.
The child who is three years and three months old, lives with Ms Geriakakis, who is his mother, and spends four hours each week with Mr Geriakakis, who is his father. This occurs from 1.00 pm to 5.00 pm each Sunday.
The parties separated when their son was six months old. Following a gap of about five months during which the father and child did not see each other, pursuant to interim orders made 18 April 2006, the father has since spent time with the child as set out above.
Without good reason for the past two years or so, the mother has refused the father's reasonable requests to increase the amount of time he has with the child or to lessen the restrictions under which this occurs.
In his Amended Application for Final Orders filed on 19 April 2007 the father applied for orders that the child lives with him as follows:
a)In week one from 5.00 pm Monday until 5.00 pm Thursday and thereafter each alternate week.
b)In week two from 5.00 pm Thursday until 5.00 pm Monday and thereafter each alternate week. The effect of this arrangement is that the child would have divided his time equally between his parents.
At the start of this hearing the father's counsel tendered a minute of proposed orders which set out the orders sought by him. Although he ultimately wanted to share the child's time equally with the mother, he suggested a graduated regime whereby his time would increase incrementally until an equal time arrangement commenced in February 2010. This would be shortly before the child turns five and is an arrangement the father contends is most likely to ensure their son has meaningful relationships with each of his parents.
The father also seeks orders which would allow him to spend time with the child on special occasions such as Orthodox Easter, Christmas, birthdays, name days and Father's Day. He seeks equal shared parental responsibility and that day by day each party is responsible for the decisions needed whilst the child is in their respective care.
In her Further Amended Response filed 19 October 2007 the mother seeks orders that the child lives with her and that she has sole parental responsibility. Concerning the child’s time with his father; she said this should comprise;
(a)Two afternoons per week from 4.00 pm until 5.30 pm on days which she does not work.
(b) From 12.00 noon until 5.00 pm each Sunday.
(c) For a few hours on special occasions.
The mother also presented a minute of proposed orders at the start of hearing. In her proposal the mother gradually increased the time the child would have with the father so that by May 2010, he would spend each alternate weekend from Friday to Sunday, two hours twice a week after school and half school holidays with the father. The mother also proposed special arrangements for important family, social and Greek Orthodox events.
The mother says the father's equal time proposal would be stressful for their son and is inconsistent with him having a reasonably ordered life. In addition, that it fails to recognise that she has been overwhelmingly responsible for the child’s care. The mother submits that her proposed orders would ensure the child has a good relationship with the father, but not at the expense of his overall adjustment, or detract from his relationship with her.
The Family Report
Because of the issues raised in the proceedings the Court ordered a Family Report. Ms L is the family consultant who was requested to prepare this report. Her report is dated 6 July 2007.[1] Ms L has not seen the parties or the child since her interviews on 14 and 15 June 2007. Her recommendations, set out at the end of her report, are as follows:
[1] Exhibit ‘B’
34.It is recommended that parental responsibility be shared by [the mother] and [the father].
35.It is recommended that [the child] live with his mother and spend time with his father, in the [P] area, two afternoons per week from 3.30 pm to 5.00 pm on the days that [the mother] does not work (so that she can facilitate handover) and each Sunday from 10.00 am to 5.00 pm and that these arrangements continue until [the child] is three years of age.
36.It is recommended that after [the child] turns three, he spend two afternoons per week from 3.30 pm to 5.00 pm and each Friday from 3.30 pm until Saturday 3.30 pm with his father.
37.It is recommended that after [the child] turns five, he spend each alternate weekend with his father from 3.30 pm on Friday until 5.00 pm on Sunday and every Wednesday from 3.30 pm until before school 9.00 am Thursday.
38.It is recommended that school holidays be shared equally between the parents and that the Christmas school holidays be shared on a week about basis until [the child] is six and allow for [the child] to spend Christmas Day, 25 December, with his mother and Greek Orthodox Christmas Day, 6th January, with his father.
39.It is recommended that [the child] spend time with his father on his birthday, his name day and on his father’s birthday for not less than three hours (2 hours if on a school or day care day).
40.It is recommended that [the child] spend time not less than four hours with his father on Greek Orthodox Easter and Christmas Day.
41.It is recommended that both parents attend a parenting after separation course.
In cross-examination Ms L emphasised that the child still has significant developmental milestones ahead and a long way to go before his personality is fully formed. It is her opinion that the parties have a highly conflicted relationship which, when combined with the child's age at separation, his primary attachment to the mother and stage of development makes it highly likely the father's equal time proposal would, from the child's position, place him under psychological stress and at risk of not reaching his full potential.
Ultimately, Ms L’s final recommendations fell somewhere between each of the parties proposed orders.
Ms L was an impressive witness. She is well qualified by education and professional experience for the tasks asked of her. However it is significant that it is now over 12 months since she completed her report. Since then there have been significant events of which she was unaware and perhaps could not have anticipated. These includes:
(a)13 months of smooth changeovers, that is, weekly interaction between mother and father.
(b)The mother's evidence that the child is happy to see the father.
(c)The child has started day-care and has settled in well.
(d)The father has adjusted to the separation.
(e)The father has been patient with the mother's almost total refusal to favourably consider his requests for age appropriate extensions of time.
(f)The father has taken positive steps to inform himself about post-separation parenting which, inter alia, meant ensuring he could satisfy the mother he is able to care for the child.
(g)The mother coming to appreciate that it is important for the child to have a good relationship with the father and paternal relatives.
(h)The mother's family softening their attitudes to the father's future role in the child’s life and generally being more favourably disposed to it.
(h)The father's family softening their attitudes to the mother.
Thus, although Ms L’s evidence warrants significant weight, there are areas where aspects of her opinion are based on assumptions not established in this hearing. For example, that the father and his mother's relationship is enmeshed or that during cohabitation he was controlling of the mother. Also, that events have shown the parties have made significant gains which last year seemed unlikely.
My assessment of the father's parenting capacity is more favourable than Ms L’s as is my assessment of his ability to intuitively and empathically engage with his son. Finally, Ms L was surprised to learn the mother had been so controlling of the child's time with the father. The sense I had was she believed there was greater support by the mother for the child’s relationship with his father than until recently has been the case. The point Ms L thus appeared to overlook is, against such a background, whether it is necessary to take a slightly more robust approach to the child’s time with the father in order to develop a meaningful relationship between them. As will become clear, I am persuaded a slightly more robust approach is necessary and that proceeding as the mother, or in the long term as Ms L suggests, would almost certainly deny the child the benefits of a meaningful relationship with the father.
Background facts
The applicant father was born in 1971. He has tertiary qualifications and is employed as a teacher. He has worked at his current School since January 2005. The father has been a teacher for almost 15 years during which time he has taught children ranging from kindergarten through to year 6.
The respondent mother was born in 1975 in Cyprus. In 1981 she migrated to Australia with her family and has lived here ever since. The mother is currently employed at a hospital. She has been employed at the Hospital on a permanent part-time basis since around 10 October 2005 and works 30 hours per week.
On 2 January 2001 the mother commenced fulltime employment with B Company. She stopped working with B Company on 30 November 2004. This is an issue to which I shall return.
The parties met around 30 June 2003 and quickly started a romantic relationship.
The parties were married in Sydney in 2004.
On 2 January 2005 the mother commenced employment with M Company which employment ended in mid-May 2005 a few weeks prior to the child’s birth.
N was born in May 2005. He is the parties’ only child. Neither of them has any other children. He was christened into the Greek Orthodox Church in August 2005.
When the child was about three or four months old the father alleges he saw the maternal grandfather, whilst changing the child’s nappy, kiss him on his tummy and penis. He says he spoke to the mother and asked her to speak to her father and request he not do this again.
A second similar incident occurred about two weeks later which was shortly prior to separation. After the second occasion the father reported the matter to the police and the Department of Community Services. He is vague on details and it is the mother's case that she first became aware of his concerns the day following separation, when she received a telephone call from the Department of Community Services. The mother believes the father has either fabricated or grossly exaggerated an otherwise innocuous event.
There is no doubt that the father reported the matter to Police and subsequently to the Department of Community Services. During cross-examination important differences between the father's oral and written evidence were revealed. These differences do not relate to peripheral issues, but to matters quite significant to the event at issue. One thing that is clear is there was nothing secretive about the way the mother's father behaved towards the child. On the father's version of events he was present on both occasions and on at least one so was the mother. The very public nature of what occurred suggests that there is nothing about which the parties or Court should be concerned. The father appears to now appreciate this. His application, if granted, would have the child continuing to live with his maternal grandfather. If the father was concerned that somehow the maternal grandfather may behave inappropriately towards the child he would have taken a different stance in the proceedings.
On balance I am satisfied that the father held a genuine but mistaken belief that the maternal grandfather's behaviour was inappropriate. Whilst the father may have disagreed with whatever took place, it is not behaviour about which the Court, police or the Department of Community Services should be concerned. The father's decision to take the matter to police and the Department of Community Services, not only heightened tension between the parties’ families, but was an immature response to an innocuous event.
The wife had an operation in early October 2005. She was in hospital for three nights. During her hospital stay the maternal grandparents cared for the child. The father said he wanted to do this but was prevented. The mother denied she prevented the father from caring for the child. I was unable to determine this factual dispute and it seems to me that nothing in any event would turn on its resolution. The simple point is that the child stayed for three days with his grandparents.
The mother returned to paid employment on 10 October 2005. It was the father and her father's preference she not do so. Both appeared to at least have agreed it would have been to the child’s advantage to have one of his parents’ fulltime care. Notwithstanding the father's opposition and without him knowing about it, the mother obtained employment with a Hospital.
Having accepted that the mother was determined to return to work, the father said he wanted his parents involved in the child’s care whilst the parties were at work. The mother insisted her parents alone care for their son, a stance her father supported. Again the father went along with the mother's proposals with arrangements put in place that while the parties were at work the maternal grandparents cared for the child.
On the first occasion the maternal grandparents minded the child, that is, 10 October 2005, the father and maternal grandfather argued about the child's babysitting arrangements. The father recalls that the maternal grandfather refused to allow the parties to take their son home and said he wanted to keep him overnight. In anger the maternal grandfather smashed a plate on the floor. Nothing turns on his conduct.
In the remaining six weeks leading up to separation the father cared for the child alone on two Saturdays for about five or six hours on each occasion while the mother worked. The mother would not have agreed to this unless she was satisfied the father could adequately care for the child. There is no suggestion the child was not competently cared for while with his father and I am satisfied he was. I accept that the father cared for the child on the other occasions referred to in his evidence and as conceded by the mother. Notwithstanding this, it is plain that as at the date of separation the mother had been overwhelmingly responsible for the child’s care. When she returned to work the father’s role increased in a real way.
Just before the parties separated the father learned the mother's former employers alleged she had embezzled funds. When he confronted her the mother admitted doing so and told him she lost the money gambling before the child’s birth. This discovery caused the parties’ already shaky relationship to deteriorate.
Not long before separation the father was admitted to Hospital with suspected glandular fever.
Final separation occurred on 26 November 2005. That day, the mother left the former matrimonial home with the child and moved to her parents’ home at P. The mother and the child have lived at the maternal grandparents’ home ever since. Also living at the maternal grandparents’ home is the mother's brother. The home comprises a five bedroom double story home with a study and rumpus room, lounge, kitchen, dining room, three bathrooms and a separate toilet. The mother and child share a bedroom. The home is well equipped and provides the child with an appropriate standard of living. The mother and the child are welcome to remain in the maternal grandparents’ home for so long as they wish.
The day after separation the Department of Community Services contacted the mother concerning the father's complaint her father twice kissed the child on the penis. The Department of Community Services quite properly has taken no further action. The mother was understandably alarmed by this turn of events, and, as I have earlier commented, it contributed significantly to the deterioration in relations between the two families.
When the parties separated no arrangements were made for the child to spend time with the father.
On 30 November 2005 the father's former solicitors wrote to the mother advising that he wished to have contact with the child and that he was happy to enter into arrangements by agreement with the mother in respect of contact. The mother did not reply to the correspondence.
On 8 December 2005 Apprehended Violence Orders proceedings taken between the father and maternal grandfather were resolved. It appears both applications were withdrawn upon mutual undertakings that the men would not approach each other or come upon each other's property. The undertakings expire in December 2008 and have been strictly complied with.
On 9 December 2005 the father's solicitors wrote to the mother's solicitors expressing concern that no response had been received to the earlier letter. It was pointed out the father: "Is most anxious to commence immediate contact with his child, especially during the Christmas season”.
On 13 December 2005 the mother repaid $66,866.58 to her former employer, B Company. These are funds the mother used gambling. The mother's parents and her brother provided her with the money. B Company has taken no further action in relation to the mother's actions.
The same day the mother's solicitors wrote to the father's solicitors and advised that she: "May consider supervised contact at a contact centre”. As I will subsequently find, there was no good reason for this. The mother should reflect with some embarrassment on her actions.
In response to the father's letter indicating he would shortly commence parenting proceedings, on 16 January 2006 the mother's solicitors advised she would agree to contact provided it was supervised. The reasons for supervision are set out in the letter and they are as follows:
(a)The age of the child. The child requires care of a kind not before exercised by your client including the changing of nappies and bottle feeding. Your client, during the marriage, became very frustrated and angry when the child would cry. Your client would not during the marriage provide my client with sufficient funds to purchase the child's necessities such as nappies and in fact amended the withdrawal mode of the bank account so that my client would not access funds when needed to purchase such items as nappies and generally showed a disregard for the child's wellbeing and welfare.
(b)The incident at [the] Hospital wherein your client's mother attempted to snatch the child away from my client.
(c)The incident at the hospital wherein your client was suffering from a contagious illness and had no regard to the welfare of the child when insisting on physical contact with the child.
(d)A number of instances in the past wherein your client revealed to my client murderous tendencies of his brother's mother-in-law which was confessed to a priest at the Greek Orthodox Church when my client found a knife in his vehicle. Your client has also admitted to my client that he travelled to [Greece] to confess these tendencies including the fact that he nearly killed someone.
(e)The numerous and false allegation your client has made against members of my client's family including event number […] (which has been referred to DOCS) and […] which further demonstrates your client's instability.
As he said he would, the father commenced parenting proceedings on 18 January 2006. In the covering letter serving the final and interim applications the father said he would tolerate supervised contact as a way of spending time with the child pending the hearing of his interim application. He suggested his mother as an appropriate supervisor. So that it is plain the father conceded supervision because he thought this was the only way he could gain the mother's consent to his spending time with their son.
The mother's solicitors responded on 23 January 2006 advising that the mother considered the paternal grandmother to be an unsuitable supervisor but that the paternal grandfather was acceptable. In response, on 25 January 2006 the father repeated his assertion supervision was unnecessary and astonishment his mother was rejected as a supervisor. In reply the mother repeated her demands for supervision and suggests as an alternative to the father's parents she would supervise two hourly visits twice each week.
Her suggestion that she would supervise the father is inconsistent with her claims she was afraid of him or his control of her. If the mother genuinely believed the father may have attempted to abduct the child, act out murderous tendencies or subvert her will to his, she would not have suggested that she supervise him.
During March 2006, the parties met at P Shopping Centre on Thursday night for two or three weeks. On these occasions the father saw the child. The mother’s willingness to meet the father one-on-one, even in a public place, is inconsistent with her claims that she was afraid of him or his control of her.
On 18 April 2006 the matter came before a Judicial Registrar. During the day the parties reached agreement concerning the father's time with the child. These orders are set out below.
By consent and until further order:
1.That the child of the marriage, [N] (hereinafter called ‘the child’) reside with the wife.
2.That each party be solely responsible for decisions about the day to day care, welfare and development of the said child while in the care of each party pursuant to these orders.
3.That the father have contact with the child as follows:
(i)On 23 April, 30 April and 7 May 2006 between 1.00 pm and 3.00 pm such contact to take place at the Food Court at [P Shopping Centre] such contact to be supervised by the wife.
(ii)Thereafter each Sunday between 1.00 pm and 4.00 pm until 4 June 2006 such contact to take place at the residence of the husband at [K] the wife to deliver the child at the commencement of such contact and to pick up the child at the conclusion of such contact.
(iii)Thereafter between 1.00 pm and 5.00 pm on the same conditions set out in Order 2 hereof until Final Orders are made by this Court.
4.That the husband forthwith make available for collection by the wife from [K property] all of the wife’s clothing, jewellery, shoes, toiletries and other personal effects presently located at the former matrimonial home.
5.That the husband and wife be restrained from applying for a passport for the said child.
According to the mother, on 4 May 2006 she received a telephone call from the father asking if he could see the child. She agreed and the father and child spent time together from between 7.00 pm and 8.00 pm.
Thereafter and until recently the mother has refused to vary the child's arrangements to spend time with the father. The exceptions to these have occurred fairly recently and coincide with Christmas Day 2007, a few hours on the child’s name day in 2008 and for a family christening the result of which was to increase a Sunday visit from four to five hours. The effect of the mother's stance is that since separation the father has never spent time with the child on the child’s birthday or the father's birthday, has been limited to four hours on Father's Day, four hours on Orthodox Easter and any other occasions which have been special family occasions on Sundays.
It is surprising therefore that during cross-examination the mother wept about the limitations placed upon her spending time with the child on Mother's Day. The child has spent every Mother's Day with his mother. The only intrusion into this has been four hours which, consistent with the regime of Sunday visits, the father has had with the child.
I was somewhat taken aback when during the mother's weeping, she was asked had she never thought how the father may feel at having been deprived of so many of the first events in the child’s life, for example, his first name day, his first birthday, his first Christmas. The mother said she never had. I was left with the strong impression that the father's feelings at being deprived of the opportunity for these special occasions with his first child were of no interest to the mother. Her stance should cause her some embarrassment and reflects poorly upon her understanding of her parental obligations.
Although I speak in terms of the father being deprived of these opportunities the child has equally been deprived of these opportunities. The child will never remember his first birthday; whether it was with his mother or his father, but these are the events of which family memories are made. One can readily picture a child's delight at a parent being able to tell them they remember how they played on their first birthday, their second birthday, their third birthday and the like. This has all been denied unfairly to this little boy.
From May 2006 to some time in July 2006 the mother routinely took the child to the C Medical Centre to be examined by a doctor before he visited his father. She says the reason for this was to protect herself from false allegations of harm to the child being made against her by the father. The father had not made false allegations of harm against the mother. There seems no good reason for this child to have been repeatedly taken to a doctor. Nor any good reason for the child being routinely photographed prior to going on visits with his father. These were ill-considered and inappropriate actions by the mother.
In June and July 2006 the mother took the child, who was then 13 or 14 months old to a child psychologist. She said the child was stressed and unsettled and she sought advice managing him. This appears somewhat an overreaction. If the mother thought this step was necessary she ought to have included the father in the consultation. Only by doing so was the psychologist able to fully appreciate the child's situation. In any event no further consultations took place.
On 22 August 2006 the father requested a paternity test to determine whether he was the child’s father. The mother agreed, it being her case that there was no doubt at all the father is the child’s other parent. Ultimately the father decided against pursuing a paternity test. It seems to me that he knew then, as he always had, that the child is his son. The father's action in requesting the paternity test warrants the strongest criticism. It was a grossly insensitive act and showed a complete lack of regard for the mother's feelings as to the implicit suggestion.
On 16 October 2006 the father, who then was self-represented, wrote to the mother seeking to extend his time with the child. He commented that he felt: "The amount of contact currently available as per the interim consent orders which is only for four hours per week is insufficient time for the child to bond with his father". He asked that he have the following extra time, that is over and above that provided for in the April 2006 orders:
(a) Every Monday for two hours between 4.30 pm and 6.30 pm.
(b) Every Wednesday for two hours between 4.30 pm and 6.30 pm.
(c) Every Saturday for five hours between 9.00 am and 2.00 pm
The mother did not respond to the father's request. I pause to observe that within the father's request there is a framework for an appropriate increase in the amount of time that the child had with his father, and although the mother may not have agreed to every aspect of it, if she was genuinely focused on promoting the child’s best interests she would have agreed to at least some of it.
During Christmas 2006 the father was not given any additional time with the child.
On 29 March 2007 the father's solicitors wrote to the mother's solicitors seeking the father have additional time with the child during the forthcoming Easter school holidays. The father is a teacher and is available to spend time with the child throughout the whole of each of the school holidays. Greek Easter is a particularly important time in this family's life and it would have been reasonable for the mother to have agreed to at least part of the father's proposals. In the end the mother took time off work, spent Easter with the child and did not respond to the father's request.
On 5 April 2007 a divorce order was made which was final one month later.
On 11 April 2007 in response to the father's initiative to engage Relationship Australia, the mother’s solicitors advised that the mother did not agree to mediation.
On 14 May 2007 the father's solicitors wrote to the mother's solicitors asking that he have additional time with the child on his forthcoming birthday. There was no response to this correspondence. Further correspondence was sent on 24 May 2007 to which the mother's solicitors responded that the mother would comply with the orders, the effect of which was that the child and his father would not see each other for the child's second birthday.
On 6 July 2007 the father's solicitors wrote to the mother's solicitors asking that the father have additional time during the forthcoming July school holidays. A reply was received advising that the mother would comply with the orders which meant that the father would not be given any additional time with the child.
Following the release of the family report the father's solicitors wrote to the mother's solicitors advising of the father's availability to spend time with the child in accordance with the family consultant’s recommendations. The mother did not respond to this correspondence.
On 16 July 2007 the father received a letter from the Community Justice Centre[2] advising that at his request they had written to the mother on 25 June 2007 and 6 July 2007 inviting her to participate in a mediation. No reply was received from her.
[2] Exhibit ‘F’
Another letter was sent to the father by the Community Justice Centre advising they had been in contact with the mother regarding the proposed mediation and that the mother had advised that she did not wish to attend mediation.
On 8 August 2007 the mother took the child to see Dr Z. Dr Z is an ENT Specialist. The appointment had been made a month or two earlier, but the father was not advised. Dr Z informed the mother that the child’s adenoids needed to be removed and that his eardrums were full of fluid which required immediate surgery. She understood that the matter was serious. Dr Z indicated he was available to operate the following day.
The mother informed the father by SMS text message that the child was to have surgery the following morning and, at her request, her solicitors similarly advised the father's solicitors. The father sought the opportunity to satisfy himself that the surgery was necessary and urgent. The manner with which the matter was handled deprived him of the opportunity. This is a simple vignette which shows that at least in August 2007 the parties’ mistrust of each other was still quite serious and had the potential to interfere with the child’s necessary care. The child underwent the operation and had grommets inserted. In all other respects he is healthy boy. He is very handsome.
The father spent time with the child on Christmas 2007, the child’s name day 2008 and the occasion of the christening.
On 22 April 2008 the father's solicitors wrote to the mother's solicitors confirming what they understood was an informal agreement for additional time on 24 April 2008 and 29 May 2008. As to the latter, this was shortly before the child’s third birthday. In the same letter the father inquired whether the mother sought a variation of the orders in respect to the forthcoming Mother's Day advising that he would spend time on the Saturday and the mother could have Mother's Day uninterrupted.
On the following day the mother's solicitors replied confirming the agreement as to 24 April 2008, but advising: "Due to unforeseen commitment, [the child] would not be made available on 29 May 2008”. The mother was asked during cross-examination about the nature of the unforseen commitment. She was unable to recall it and ultimately agreed it must have been an insignificant event given that it happened so recently and it is now beyond her recall. It seems to me that the mother's conduct on this occasion warrants the strongest criticism. Her actions were selfish.
This hearing was conducted over four days. At the end of the first three days (being a Friday) the parties agreed that the father would have the child on Sunday from 9.00 am until 6.00 pm. I assume this took place.
The issues
During the hearing the issues seemed to focus upon the following matters.
Since the interim orders were made the father has seen the child on every occasion provided. He has, as I have commented, made numerous requests to the mother to see the child more often. Other than as outlined above, the mother has never offered the father additional time. Indeed, having made representations in her various responses about the amount of time the child should have with his father, she has refused to implement them. One has the sense of the mother almost playing a cat and mouse game with the father concerning the circumstances and time he could have with his son.
The point made however is the mother suggested in cross-examination to the father, that he had in effect made a tsunami of requests, many unreasonable, and that the only way she could cope with the volume and nature of his requests was to refuse them all. I invited the mother's Counsel to provide the Court with a bundle comprising those requests and responses over and above those contained as annexures in the affidavits. When the matter adjourned overnight I was somewhat surprised the following morning to learn that no further documents were to be tendered.
In reply the mother submitted a bundle of documents[3] which dealt with the father's requests and the mother's responses to those requests for time with the child. Exhibit ‘J’ commences with the father's solicitor's letter of 13 December 2005 and ends with the mother's solicitor's letter of 23 January 2006. I am satisfied that the mother's decision not to proffer further documents supporting her submission that she could not cope with the volume and nature of the father’s requests is because there are no further documents to support the proposition. The effect of this is I am satisfied the father has maintained a reasonable and patient approach to requesting time with his son. There has been no tsunami of requests. There have been well paced, well structured requests usually age appropriate and none which could be interpreted as symptomatic of a controlling personality or harassment.
[3] Exhibit ‘J’
By comparison one could interpret the mother’s stance as selfish, even bordering on the provocative.
The father alleges the mother had a gambling problem, of which there is no doubt, and that she has failed to be open and honest with the Court about her gambling activities and the consequent effect on her capacity to provide for their son. The mother agreed that until she stopped work and for about 12 months she gambled daily and usually at the … Tavern. In approximately 12 months she lost almost $75,000, most of which she repaid to her employer. The father says that the mother's failure to mention her gambling anywhere in her affidavit detracts from her credit. While I agree that this is so, I do not consider that the mother's gambling in the time prior to the child’s birth is a matter for concern in determining the child’s future living arrangements. The mother says, and there is no evidence to the contrary, that she has not gambled since the child was born. I am satisfied this is correct.
As I have already commented, the mother claims the father has a jealous and controlling personality. She gives evidence of him answering questions directed to her by other people and says when she was working at M Company he telephoned her two to three times a day. These telephone calls were allegedly not what one might see as a warm exchange between spouses at a fairly unremarkable frequency, but were repeated accusations of infidelity and attempts to check on the mother. The father does not deny the frequency of his telephone calls but resists the flavour, which the mother alleges. I was not really able to come to a clear view one way or the other about this. It may be that the truth lies in perception, that is, the mother perceives that the father was checking on her and perhaps to an extent he was but not to the extent that she alleges. In any event, what is clear is the parties’ short marriage was unhappy and one would expect signs of it being so. This may well be part of it.
Whatever the situation was, since separation the father has not harassed the mother nor pursued her in a jealous or controlling fashion. The mother has moved on with her life. So too has the father. His correspondence and conduct towards the mother since separation has, until he could address it through the proper channels, by and large been patient and accepting of her stance concerning his contact with their son. Whatever the features were of their relationship prior to separation bears little relationship to the situation since separation. The mother's offer to personally supervise the father's visits with the child is inconsistent with much of what she says about his behaviour.
It is the mother's belief the father is dominated by his mother. The mother says the father allowed his mother to dominate organising the child’s christening and that she was always at their home attempting to control the mother and constantly criticised her. There was no challenge to the paternal grandmother's evidence that for a reasonable time following the child’s birth she was not a frequent visitor to the parties’ home. The sense that I was left with was that following the child’s birth and after 40 days of traditional isolation had passed, the mother's family were in regular contact with her. Indeed it was the mother’s and not the father's family who were installed as the child’s babysitters.
If the paternal grandmother was the controlling force the mother alleged, I would have anticipated greater input by the paternal family consistent with their wishes in the child’s care once the mother returned to work. The fact that they were not detracts considerably from the mother's contention.
The mother gives evidence that she does not believe the father's parents, particularly his mother, are suitable supervisors. She deposes in her affidavit to several conversations she says concerned her, for example, the paternal grandmother told the mother that, when the father was a child, she threw him across the room when she could not control his crying. Also, when the father and his brother were young, they were left at home by themselves. In addition, there was a period of between six to 12 months after the family had returned to Greece, and when the father and his brother were young they were left with other family members and did not see their parents.
The father's mother denies mistreating the father. Again it is difficult to come to a view about her care of the father when he was small. I pause to observe that the father and his brother are close to their parents and their relationship does not suggest they perceive an abusive or neglectful childhood. To the contrary, the father and his mother attest to her significant role with his brother’s children. The evidence did not establish there is good reason to be concerned the paternal grandparents would somehow be neglectful of the child.
The paternal grandmother was questioned about her health. She had an operation in 2005 following a leg injury and was issued with a disability card from the RTA. The submission was made to the effect that the relevance of this line of questioning went to the paternal grandmother's indifferent health and that she was unable to adequately be involved in the child’s care. I commented at the time that the 'elephant in the room' is that the paternal grandmother works as a cleaner two and a half to three hours a day five days a week. She starts work some time between 2.00 am and 3.00 am. My point being that she performs physical work far beyond that which anyone else in the child’s life is involved in. If the paternal grandmother is physically incapable of caring for the child then so too is the rest of his family.
Imagine my surprise when I learned that the maternal grandfather had been in receipt of a disability pension for years. The mother had no concern her father is involved in the child’s care. On the one hand she seemed to contend that the paternal grandmother, who notably is still in paid employment, by virtue of having a disability card following a leg injury was physically incapable of caring for the child, but on the other her father who receives a disability pension is capable. The two positions did not sit comfortably together, and in some respect highlight the manner with which the mother has approached the lack of inclusion of the father and his parents in the child’s life.
The applicable law
Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64B). They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as: “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exist reasonable grounds to conclude that a parent, or a person who lives with a parent of the child, has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DA(4)). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.
Section 60B sets out the objects of Pt VII and the principles which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensure that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective, points the way to an optimum outcome. Where there are no countervailing factors, the s 60B principles may be decisive. Section 60B is set out below.
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
3.For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC. Section 60CC(1) contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)). These two factors are referred to as “primary considerations” which means they must be considered in every parenting case and are to be considered as having particular importance.
Having considered the primary considerations, the Court must take into account the thirteen additional considerations set out in s 60CC(3). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities: s 60CC(4). In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence: s 60CG. Ultimately the weight attached to each factor is a matter for the Court’s discretion.
The sequence of determining parenting orders is important. If the court is satisfied that a child’s parents are to have equal shared parenting responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with its parents (s 65DAA). In the context of s 65DAA 'consider' means a consideration tending to a result, or to consider positively the making of an order: Goode and Goode (2006) FLC 93-286. The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in s 65DAA(3) and occurs where:
(a)The time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The child’s best interests remain the overriding consideration.
Where neither concept delivers an outcome which promotes the child’s best interests the court then determines the parenting applications as outlined above. Similarly, where the Court has decided against maintaining equal shared parental responsibility s 65DAA considerations do not apply.
The Father’s circumstances
The father resides in the former matrimonial home at K. This is where the parties were living when the child was born and at the time of separation. Since separation the father's parents have resided with him. The father's parents own a home in O. His father is retired and as I have commented his mother is employed as a cleaner. The father's brother and his family live one street away. The family thus is co-located.
From the paternal grandmother's perspective it is far easier for her to travel to and from her place of employment from K than from O. Although that is part of the reason the father's parents have moved in with him, the predominant reason is that immediately post-separation the paternal grandmother thought it appropriate she provide her son with support and care for him. This is evidence of familial closeness. I am not satisfied it is evidence of enmeshment.
The father says that in the lead up to the child starting school he is willing to move to P or thereabouts to be nearer to the child’s home. His point being that he will ensure he is physically co-located so that if an equal time arrangement is ordered it can be easily implemented. The child could live in two homes but easily access his school, have access to the same group of friends and live a settled existence albeit with his time divided equally between parents who live nearby to each other.
I accept that the father would make the arrangements he says he will make. The father has approached his employer and has their consent he works four days a week and not Fridays. This is an arrangement for the long term. Again, the father submits that he will put in place work arrangements which are complementary to the mother's and make it feasible for him to spend the time with the child that his orders seek. He would be significantly involved in the child’s care. His parents may be called upon to assist in some degree but the father will remain the primary carer whilst the child is in his care.
The father is Greek Orthodox. His religion is important to him and he is a regular and devout church goer. It is important for him that the child is brought up in the Greek Orthodox faith. The father and his parents are fluent in Greek and the child will be as well. The father has not re-partnered. The father's parents strongly support his role in the child’s life. His mother is perplexed her role in her son and grandson's life has been the subject of criticism.
The mother’s circumstances
The mother lives with her parents at P. By virtue of the property orders, the mother will receive approximately $175,000 less an amount, which presumably will be used to reimburse the family and others for legal fees. The mother plans to purchase her own home in the P area. Once she does, the child’s childcare arrangements will remain basically the same, that is, the maternal grandparents will continue to provide the practical support for her and the child which they presently provide. Slowly this will diminish as the child’s day care hours increase from the current three hours on Thursdays. The parties agree he should attend preschool as preparation for school.
The mother works 30 hours per week at a Hospital. This is a permanent arrangement and I proceed on the basis that the mother's evidence appears to suggest that no changes to these arrangements are proposed for the long term. She works Tuesdays, Wednesdays and Fridays from 6.00 am until 3.00 pm and Saturdays from 7.00 am until 1.00 pm. The Hospital is approximately 45 to 60 minutes from her home.
The mother has a car and to date has been delivering and collecting the child for the father's visits. She agrees with his proposal that basically the parties share changeovers and is agreeable that changeovers could take place at a public location. As must have been plain during the hearing although the parties appeared to prefer a public place for changeovers I could see no good reason, associated with the child’s welfare, why changeovers from home to home should not be implemented. Plainly the parties have thus far been able to manage collection and return from the father's home and having listened to the maternal grandparents, I can see no reason why changeovers cannot take place from their and the mother’s home.
The mother shares the father's Greek Orthodox faith and commitment to it. Her religion is important to her and like the father, she practices it devoutly.
Presently the mother and the child attend Church on Sunday mornings. The child recently commenced taking Communion. The parties agree, at least in this respect, about the importance of their faith for their son. The mother's parents appear fluent in Greek but have less sophisticated English language skills. They and the child communicate very comfortably in the Greek language. Between his grandparents on both sides and his parents, the child is likely to have the benefits of Greek language and culture and the English language. He will also be exposed to Cypriot and Australian culture. The child is fortunate indeed.
The mother has two brothers. Her brother who I have earlier mentioned, and another brother who resides in Melbourne. The Melbourne brother is married with children. The maternal family is very close and the mother's brothers and parents are strongly supportive of her and the child.
It is quite clear that in the period leading up to and following separation the maternal grandfather was quite angry with the father and the two men had a quite hostile relationship. The maternal grandmother has not been quite as involved in these difficulties and it is not clear to me whether the mother’s brother was involved at all. In any event, during cross-examination the maternal grandfather demonstrated a softening in his attitude towards the father. I would not go so far as to say he liked him, but he clearly agrees that the child should have a proper relationship with his father, which position the maternal grandmother supported.
I felt the maternal grandparents were unfairly criticised about their evidence that they were not inclined to do more to facilitate changeovers. It is not their responsibility to be driving from P to K or vice versa in order to make the child available for visits with his father. Primarily, responsibility for this falls to the parties. The maternal grandparents’ evidence concerning the extent to which they are willing to be involved was quite reasonable.
In relation to the maternal grandparents, I am satisfied they love their grandson dearly and will do the right thing by him and their daughter. Both appear law abiding citizens and once they appreciate the obligations imposed on their daughter by these orders, I have no doubt that they will help her meet her obligations pursuant to the orders. Although in the short term this might involve some discomfort for the father and paternal grandfather, with respect to them, that is their problem and it cannot be allowed to become the child’s.
Application of the law to the facts
Primary considerations
The parties agree that this is not a case about risk. The case is primarily about the benefits to the child of a meaningful relationship with both of his parents.
Whichever outcome is ordered, the child’s relationship with his mother is assured. It has the solid foundations of three years primary care and, as the family consultant reports, the child delights in her company. It is clear from the family consultant's report that the mother is at the top of the child’s attachment hierarchy. He is warmly and securely attached to her and theirs is a warm and loving relationship. I have no doubt that it underpins, to a considerable degree, this child's sense of wellbeing and overall security.
The family consultant observed in the child’s interaction with his father a warm and genuine affection. The father took the child by the hand and with age appropriate care guided his son through a strange setting in which a third person, unknown to the child, was present. The family consultant observed warm and easy interaction between father and son, and it is clear that their relationship is happy and, from the child's perspective, meaningful.
Although when the paternal grandmother joined the session she somewhat took over, this does not detract from the observations the family consultant made of the father and child. The amount of time father and child have had together however, comparatively, has been limited and it is unarguable that, from the child’s perspective, the father's relationship with the child does not have the depth or same centrality that exists in his relationship with his mother. This is a finding to which I attach considerable weight. It is not however the end of the matter because s 60CC2(a) talks about the benefit to the child of having a meaningful relationship with both of his parents. The Court is charged with the responsibility of trying to look to the future and see what the Court can do to promote the benefits of the child’s relationship with his father.
Additional considerations
Section 60CC(3) deals with the additional considerations and I will turn now to consider these. The first is the child's views and the weight to be attached to them. The child is too young to understand the nature of his parents’ competing proposals or to express any view about them, and the sub-section is effectively irrelevant.
Next, the nature of the child's relationship with each of his parents and other significant people. I have already made findings concerning the parties’ relationships with the child.
The child’s maternal grandparents have been intimately involved in his care since he was approximately six months old. The probability is that they are highly important to him in an attachment sense and that prolonged separation from them, as would be the case in terms of prolonged separation from his mother would be psychologically damaging to the child in the short term and probably also the long term. The family consultant gives a detailed discussion of the effect of separating the child at the age of two from his primary carer and maternal grandparents, which in short she says is contraindicated. The force of the family consultant’s comments are somewhat lessened by the passage of time but nonetheless the strength of the child’s relationships with his mother and maternal grandparents, as compared to the other people involved in the proceedings, is an important factor in the case and one which must be handled carefully.
The child has a happy relationship with his paternal grandparents, but their time with him is limited to the amount of time the father has had with the child. These adults have done their best to invest as much energy and enrichment into the four hours which they have had with the child each week. However, for a child of this child’s age, four hours a week over a period of some two and a half years does not give these relations the same solidity he has in his relations with his mother and maternal grandparents.
When the case started I enquired of the father's counsel whether he fully appreciated the differential in the nature of the child’s relationships with the maternal, as compared to the paternal relatives. That is because the father's proposal, as it stood prior to the commencement of the hearing, suggested to me little appreciation of the difference. The father's minute of order came as a breath of fresh air and demonstrated that, although somewhat belatedly, the father had reflected upon the child's different experiences of relations with him compared to his relations with his mother.
Recognition and insight is important, but it does not change history or the quality of the relationships that the child has with his mother, as compared with his father. By and large I agree with the family consultant’s observations of the nature of the child’s relationships with each of his parents and maternal and paternal family, as discussed in the family report.
Section 60CC(3)(c) concerns the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent. I have already made findings critical of the mother's resistance to the father's requests for proper time with the child. She has demonstrated a willingness and ability to comply with orders. What she has not done is demonstrate a genuine commitment to encouraging the child's relationship with his father.
My concern is, in his mother's home, the child lives in an environment where the father is rarely spoken of and where little is done to reinforce for him the importance of his father and paternal relatives. Certainly there are some steps that are positive being taken and I refer particularly to the mother's evidence concerning photographs of the child with his parents. More progress might include providing the child with a photograph of his father in his bedroom and some positive reinforcement of the importance of the child’s time with his father.
If the mother does no more than comply with orders, she pays lip service to her obligations. She could not have anticipated that orders made in April 2006, limiting the child’s time to four hours a week at his father's home, were intended to address the child's circumstances for the next two and a half years. I do not know why this case has taken so long to come to trial, but the mother probably knew when she entered in the orders that everyone expected the trial would have commenced much sooner. The orders addressed the child’s circumstances as at April 2006. As the years since April 2006 have come and gone, the limited four hours a week long parted company from an arrangement, which was in the child’s best interests. But I speak here of the past. I hope I discerned in the mother by the end of her cross-examination a greater appreciation of the Court’s expectation of her in promoting the child’s relationship with his father. However I am not filled with confidence about her changed stance. Thus, I am satisfied it is necessary to give the child the opportunity to form his own views and through day to day time with his father, experience first-hand his father's parenting. In the short term this may place the child under some stress, but I have constructed a graduated approach and it is my expectation that the child will move through these and settle into increasing amounts of time with his father. This is the best way to promote the child’s close and continuing relationship with his father.
I do not have similar concerns about the father promoting the child’s close and continuing relationship with his mother. The father recognises this relationship and its importance to the child. There have been no difficulties with the child being returned on time and the father has abided by the increasingly unreasonable restrictions imposed upon his time with the child.
While I believe the father has the ability to facilitate a close and continuing relationship between the child and the mother, I do not think the father fully appreciates the effect on the child of separating him from his primary carer to the extent that the father proposes. This does not stand in opposition to the idea that the father will do other than promote the child’s relationship with his mother. I accept that the father’s proposal to reduce the child’s time with the mother is not designed to reduce the child’s relationship with the mother. However, I have serious reservations about the child’s ability to withstand substantial reductions in his time with the mother, his primary carer, without suffering adverse consequences to his development.
These findings are inextricably linked with s 60CC(3)(d) which looks to the likely effect of changes in the child's circumstances, including the effect of separation from either of his parents or others with whom he has been living. The family consultant speaks at considerable length at the effect on the child of separating him from his primary carer. She says unless this takes place gradually and in a manner which acknowledges the child's age and stage of development, then the consequences for the child could be quite concerning. I incorporate into these reasons paras 29, 30 and 31 of the family report:
29.The parents separated at a critical stage of [the child’s] development, when he was just beginning to forge and consolidate attachments to his caregivers, (his mother and maternal grandparents) and he remained largely separated from his father during this phase. To transfer the care of [the child] to [the father] to the extent that he proposes would be to separate [the child] from the person(s) with whom he has his primary attachments. To sever [the child’s] relationship to that extent with his mother, maternal grandparents and uncle would likely result in [the child] becoming distressed and him likely experiencing anxiety. [The father] appeared to have no appreciation of this issue or his need to be physically available to the child in an equal shared care arrangement, because he said that he would continue to work full time and leave the day to day care of the child to the paternal grandparents. For these reasons a shared care arrangement is inappropriate.
30.At just two years of age, [the child] is only beginning to appreciate that each of his parents continues to exist when they are not in his presence. Importantly, at this stage of his development [the child’s] memory is limited and he is not able to call on his memory to ameliorate any experience of loss of either of his parents. Also, his very primitive sense of time does not allow him to conceptualise when he might see people again, further reducing his ability to cope with separations from significant people in his life. For these reasons, relatively long separations from his attachment figures, as proposed by [the father], would be likely to place stress on the child and these developing relationships. For these reasons [the father’s] proposal is not appropriate for [the child] at this stage of his development. More frequent visits between [the father] and [the child] of a lesser duration would be less stressful for the child and more useful in [the child] and his father forging a relationship.
31.[The father] and [the mother] appear to have little trust in each other and, if this prevails, [the child] will continue to be raised in a hostile environment. This might place him at risk of not reaching his full potential and experiencing psychological problems including behavioural difficulties, reduced educational attainment, difficulties in his peer and intimate relationships and him experiencing poor self esteem.
I pause to observe that when the family consultant speaks of the child's age, she is speaking of the child at two and when she is speaking of his ability to understand time, she is speaking of a child younger than N. In my view the child is better able to understand that leaving his mother's care does not mean she will not return. He has experienced years of coming and going to his father on Sundays. He has experienced years of his mother being at work. His mother has left for work before the child wakens. He is used to going to bed and not seeing her for the best part of a day. It causes him no distress. The maternal grandmother said she has cared for the child overnight when the mother has not been there. The effect of this is that the child is able to cope with these short separations including overnight from his mother without discomfort. This is consistent with Ms L’s recommendation that from the time the child was three, he was ready for overnight contact. She says he is ready for it now and I am satisfied he is. The only reason there would be any delay is for there to be a few short steps before the child spends overnight in a home with which he is familiar, but where he has not spent more than a few hours in recent years. One would expect that he would settle quite quickly.
In a similar vein and although slightly ahead of Ms L’s recommendation, I am satisfied the child could step reasonably quickly from one night to two nights regularly with his father. There is nothing in the evidence before me that leads me to be concerned that introducing two nights in seven for the child with his father, is likely to be unsettling for the child in terms of separation from his mother or his maternal grandparents. To the extent that there will be transitional issues, my expectation that these will quickly resolve and the benefits to the child of more time with his father, his father's parents and his paternal relatives, far outweigh the detriments to which I have made reference.
There is a point however at which my satisfaction that the child could cope with these sorts of changes in the reduction of his time with his primary carer and maternal grandparents, and increasing time with his father moves into the realms of speculation. I said at the beginning of this case that I was uneasy at the suggestion that I might, even by 2010, make orders for the child to have equal time during school term with his parents. Ms L gave voice to aspects of my concern. The child is still developing. All the signs are he is developing normally and his personality seems to be a rosy and happy one, but he is only three and he faces many challenges between now, 2010 and 2011 when he will probably start school.
It is difficult to anticipate how he will cope with increasing day-care, reducing the amount of time with his mother, reducing the amount of time with his maternal grandparents, increasing the time with his father and his paternal relatives, living between two homes and starting school and then being positively satisfied that equal time between his parents is in his best interests. It may be, but at this point I cannot make the sort of findings I would need to be able to make in order to be satisfied that it is. I cannot make a finding in relation to a child with my finger's crossed, merely hoping this works out. I need to be more positively satisfied than this. So that it is plain, as it probably was on Thursday when submissions concluded, I am not satisfied that the evidence is sufficiently clear that the father's approach for equal time is in this child's best interests. It may in the long term be in which case I will need to consider the prospect of future proceedings.
The parties will see from my orders that there is a graduated regime for the father's time with the child which differentiates between term time and holiday time and thus takes into account his and the mother's availability. I have not gone so far as to significantly include the Fridays the father has available. Although the father's availability is important, what was more important in deciding against regular Fridays or starting on Thursdays is the effect of separation on the child from his mother. I thought it was simply too much too soon and the balance I have struck whilst influenced by availability is more influenced by the possible effects of separation on the child from his primary carer and attachment figures.
The practical difficulty and expense issues referred to in s 60CC3(e) are not significant. The party's live about 45-50 minutes apart and are able with modest effort to move the child easily between them. Some of the changeovers will take place while the mother is at work, and on those occasions the father will need to collect the child from her parents if they are caring for him, or whatever other childcare arrangements she has in place. It will be the mother's responsibility to ensure that those people who have the child’s care act as her agents in making him available to his father.
In a similar vein, in the unlikely event the father is unavailable, he will need to ensure that he has people able to assist him, probably his parents, in ensuring the child is returned to his mother or school, whichever is applicable.
Both parties made submissions concerning the respective parenting capacity including their respective capacity to provide for the child’s emotional and intellectual needs. Both parties impressed me as being of probably better than average intelligence. They are committed to the child’s academic success and each is more than capable of providing for his physical, emotional and intellectual needs. There is nothing which distinguishes between their ability; the point of difference relates to the child’s emotional needs and the extent to which the mother has been his primary carer. This is not an issue of capacity per se but is the outcome of history.
Sub-section (i) refers to the attitude to the child and the responsibilities of parenthood. Both of these parents take their parental responsibilities seriously. Although I have been critical of each of the parties, I have only praise for the efforts the mother has put into meeting the child’s day to day needs post-separation. Obviously I am putting to one side her attitude to the child’s relationship with his father, but it is plain the child is a well loved, happy little boy achieving all of his developmental milestones. He has been in his mother's primary care and there can be no doubt that she has gone to great pains to ensure this outcome for him. It stands him in good stead for the future.
The father is also very committed as a parent and as his counsel said on Thursday the father is in this for the long haul. He has stood firm in his determination to have a proper relationship with his son and to fulfil his parental responsibilities. This is not an issue of control and has nothing to do with his attitude to the mother. He loves his son. The child is very fortunate indeed to have two parents who want the best for him. Too often we see cases where that cannot be said. It is important that the parties, once these proceedings are over, recognise that they are two very good parents who between them can give this boy everything that they could hope for and it is their responsibility to make sure it happens.
There are no family violence issues which require consideration.
Sub-section (l) concerns whether it is preferable to make an order which would be least likely to lead to the institution of further proceedings in relation to the child. The father's counsel submitted future proceedings are all but certain unless an equal time outcome is provided. It was not put to the Court as a threat, but as a recognition of the father's firm belief that only by having equal time does the child have the type of relationship with both of his parents which the law suggests the child should have. If the Court goes only so far in facilitating a meaningful relationship between the child and his father, then at some not too distant time further proceedings are necessary. It is said that the Court would be satisfied that the mother would unlikely give ground and accede to the father's requests for further time with the child. The evidence to date suggests that there is much force to that submission. However, although I am satisfied that in refusing to ultimately order the child’s time to be equally divided between his parents, the increased likelihood of future proceedings is not so weighty that it outweighs my concerns about the speculative nature of ordering equal time. This is a finding to which I attach reasonable weight.
There are no other facts or circumstances that the Court needs to consider.
There is considerable overlap between ss 60CC(2), (3), (4) and (4A). The father has sought to be actively involved in making long term decisions about the child’s care, to spend time and communicate with him to a greater extent than the mother has permitted. No criticism can be made of him that his level of participation is less than would have been desirable. On the other hand, quite obviously and somewhat repetitively, I am satisfied that the mother has failed to facilitate the father's involvement in making long term decisions and spending time and communicating with the child to the extent that the child's interests required. Exhibit ‘G’ shows that the father presently pays child support as assessed in the approximate sum of about $817 per month. His child support is up to date, although was $645 behind as at 4 August 2008.
I do not want to go too much into old ground, but at the close of evidence on Monday last the mother argued the father sought to increase his time with the child as a way of reducing his child support. It is a submission, as I commented at the time, which is grossly offensive. If it is true it reflects extremely poorly on the parent who uses time to reduce proper financial contribution to the child's care. That is not the case here. The father makes proper contribution towards the child’s financial support and has always done so. The submission lacked any proper factual foundation even though it may have been founded in the mother's belief. For a proposition to be put in my view it should have a proper factual foundation and it is regrettable that this type of submission is one that the Court hears too frequently.
One can only wonder what parents, who are simply interested in spending time with their children, think when confronted with remarks as offensive as those. I would like the father to leave the Court knowing that in my view there was no basis for the question and it is a proposition that the Court resolutely rejects.
I turn now to consider the structure of the orders. Before submissions started on Thursday last I provided an overview of the type of orders I was then considering. I thought it consistent with the principles expressed in Bolitho v Cohen (2005) FLC 93-244 and wanted to ensure that the parties had an opportunity to address in detail the detailed orders likely to be required for this case. My orders are broadly consistent with those provided Thursday last.
There are some points of difference though and I have taken into account in particular the father's counsel's submission concerning the father's availability during school holidays, and have supplemented the frequency but not duration of the father's time with the child in the 2008/2009 Christmas school holidays with increases thereafter. So the effect will be that after some few weeks of longer daytime visits on Sundays, additional time on Thursdays, by 12 September 2008 overnights will start and Thursday will change to Monday. The rationale being to provide some distance between the visits so the child has a sense of regular but not bunched time with his father. In my view, that approach spreads the effect of the father's presence in the child’s life and is more profound than if the father’s time with the child is bunched together.
By 3 December 2008 the father and the child will be having time each weekend for two nights stopping at noon on Sunday. That being the outer limit at this stage for the child to manage being separated from his mother and other important carers. This extends on 5 June 2009 to 6.00 pm by which time the child will be well accustomed to two nights with his father and the opportunity should be provided to them for two full days. That arrangement continues until January 2010 when at the end of term 1 half school holidays will commence.
I have made special arrangements for the child to spend time with his father on his name day, Greek Easter and the child’s birthday. In the next couple of years they are weighted heavily in the father's favour for the obvious reason that it is important that the child has some of these special occasions with his father in circumstances where to date they have been predominantly with his mother. There are a series of injunctions aimed at ensuring the parties cooperate with each other and the arrangement for equal shared parental responsibility works in the sense that both parties have all of the information needed to make proper parenting decisions, and neither of them makes decisions without reference to the other.
There is an injunction against the parties taking the child to counselling and the like without the other party’s consent. Quite obviously if something like that is necessary both parents need to be involved and the situation which occurred when the child was 13 or 14 months will be avoided in the future. The travel arrangements are as discussed on Thursday with a provision available that if a party is unable to personally deliver the child they need to make arrangements for someone else to do so.
For these reasons I make the orders dated today.
I certify that the preceding one hundred and forty six (146) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered orally on 25 August 2008.
Associate:
Date: 12 January 2011
Key Legal Topics
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Family Law
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Procedural Fairness
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Remedies
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Statutory Construction
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