GLADWIN & GLADWIN (No.2)
[2020] FCCA 2091
•31 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GLADWIN & GLADWIN (No.2) | [2020] FCCA 2091 |
| Catchwords: FAMILY LAW – Parenting – best interests of the child – orders made. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 60B, 60CA, 61DA, 65DAA, 65D, 65DAC, 65DAE |
| Cases cited: Lansa & Clovelly [2010] FamCA 80 |
| Applicant: | MR GLADWIN |
| Respondent: | MS GLADWIN |
| File Number: | PAC 2293 of 2018 |
| Judgment of: | Judge Newbrun |
| Hearing dates: | 29 April 2020, 30 April 2020, 1 May 2020, 6 May 2020 |
| Date of Last Submission: | 6 May 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 31 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Maroulis of Counsel |
| Solicitors for the Applicant: | Alexander Maroulis Lawyers |
| Counsel for the Respondent: | Ms Petrie of Counsel |
| Solicitors for the Respondent: | Keypoint Law |
| Counsel for the Independent Children’s Lawyer: | Ms Hamilton of Counsel |
| Solicitors for the Independent Children’s Lawyer: | JLM Family Lawyers Pty Ltd |
ORDERS
The parties shall have equal shared parental responsibility for the child X (“the child") born in 2017.
That the child live with the Mother.
That the child spend time with the father as follows:
Until the child turns five years of age:
(a)Each Tuesday from 8:30 AM to 11:30 PM for 6 weeks in the father’s home supervised by B Families, with the parties to each share in the cost of the supervision; and then,
(b)Each Tuesday from 8:30 AM to 11.30 AM for two weeks, then,
(c)Each Tuesday from 8:30 AM to 1:30 PM for two weeks, then,
(d)Each Tuesday from 8:30 AM to 3:30 PM.
After the child turns five years of age:
(a)Each alternate week on Tuesday from after school or 3:30 PM if not a school day to Wednesday before school or 8:30 AM if not a school day for four occasions commencing on the first weekend after the child turns five; and thereafter;
(b)Each alternate week on Tuesday from after school or 3:30 PM if not a school day to Thursday or 3:30 PM if not a school day.
After the child turns six years of age (in relation school holidays):
(a)For the first half of all term school holiday periods from after school on the last day of term for seven nights with changeover to occur at 4 PM;
(b)In the Christmas school holiday periods on a week about basis commencing from after school on the last day of term four for seven nights and each alternate seven nights thereafter.
From the commencement of these Orders:
(a)On Father’s Day from 10am to 2pm;
(b)From 2pm to 6pm on Christmas Day;
(c)On the child’s birthday from 10am to 2pm or if a school day then from after school or 3pm to 7pm.
That changeover occur at the entrance of Suburb C train station and, following the child commencing primary school, at the child’s primary school. Otherwise, during school holidays and/or on special occasions, changeover shall be, in the absence of agreement between the parties, at the entrance of Suburb C train station.
That the parents have FaceTime with the child each Wednesday between 6pm and 6.30pm when the child is in the other parent’s care pursuant to these Orders.
That the parents communicate urgent matters in relation to the child via text message and non-urgent matters in relation to the child via email.
That within 7 days of the date of these Orders, the parents shall provide to each other their current mobile telephone number, email address and current residential address and any changes thereto within 48 hours of any such change occurring.
That these Orders are sufficient to ensure that any school or preschool or day care facility that the child may attend will have authority to provide to both parents, all material usually available to parents and both parents are authorised to attend any school functions and events usually open to parents.
That should the child require urgent medical care or be hospitalised, then the parent with care of the child shall contact the other parent as soon as possible and provide details sufficient for the other parent to attend the hospital or medical facility to which the child has been admitted.
That the parents will advise each other of any proposed appointments with any specialist medical practitioner or dental practitioner at least 48 hours prior to that appointment occurring and this Order authorises both parents to be able communicate with any medical or dental practitioner that the child attends upon and receive all information usually available to parents.
That the parents shall not speak in a derogatory manner about the other parent or a member of the other parent’s household within the presence or hearing of the child and will remove the child from the presence or hearing of any third party seeking to do so.
That after consultation, should the parents not be able to agree to a school for the child or make any other decisions in relation to the child’s health and welfare, then the parents shall arrange and participate in mediation to resolve any dispute.
By consent, the parties shall each pay the sum of $6,572 to the Independent Children’s Lawyer for her costs, but their obligation to pay such costs shall be deferred for six months.
IT IS NOTED that publication of this judgment under the pseudonym Gladwin & Gladwin (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2293 of 2018
| MR GLADWIN |
Applicant
And
| MS GLADWIN |
Respondent
REASONS FOR JUDGMENT
Introduction
This final parenting hearing relates to the male child X born in 2017 (the child).
The final hearing of these proceedings occurred through use of Microsoft Teams technology.
Proposals
The Mother seeks orders as set out in her proposed Minutes of Order forming part of Exhibit F.
She seeks final parenting orders, inter alia, that she have sole parental responsibility for the child, that the child live with her, and that the child spend supervised daytime time with the father (for a period of up to 3 hours each Saturday or Sunday, in addition to certain daytime time on special occasions).
The ICL sought final parenting orders as set out in her Amended Minute of Orders; inter alia, the ICL sought orders that the parties have equal shared parental responsibility for the child; that the child live with the Mother; the child shall spend unsupervised time with the Father (apart from an initial period of three weeks of supervision) on a graduating basis: until the child turns 5 years of age, each Monday and Thursday from 8:30 AM to 3:30 PM; after the child turns 5 years of age, one overnight each alternate week (commencing on Tuesdays) for 4 occasions, and thereafter two overnights each alternate week (commencing on Tuesdays); and, in relation to school holiday time, after the child turns 6 years of age, for the first half of all term school holiday periods, and week about during the Christmas school holiday period; and daytime time on special occasions.
The Father ultimately agreed with the proposed orders of the ICL except that, in relation to the ICL’s first proposed period of time with the child (until the child turns 5 years of age), in lieu of each Monday and Thursday from 8:30 AM to 3:30 PM, the Father sought each Monday and either Tuesday or Wednesday, from 8:30 AM to 3:30 PM.
Material relied upon
The Father relied upon the following documents:
a)Amended Initiating Application filed 19 April 2020,
b)His Affidavit filed 23 April 2020, and paragraphs 17-20 inclusive of his Affidavit sworn 27 June 2019 (sent to the Mother’s solicitor and ICL on 30 June 2019),
c)Affidavit of Mr D filed 20 April 2020.
The Mother relied upon the following documents:
a)Amended Response to Initiating Application filed 8 April 2020,
b)Minute of Order proposed by the Mother (forming part of Exhibit F),
c)Affidavit of the Mother filed 8 April 2020,
d)Affidavit of the Maternal Grandmother filed 8 April 2020.
The following exhibits were relied upon by the parties and ICL:
a)Exhibit A: Supervision Reports by B Families;
b)Exhibit B; Family Report dated 28 October 2019 and Child Inclusive Conference Memorandum dated 21 January 2019;
c)Exhibit C; Collection of Emails and Text messages between parties and supervisors dated between 23 April 2019 to 2 February 2020;
d)Exhibit D; Photograph of the child X dated about 27 January 2020;
e)Exhibit E; Email from the Mother dated 13 August 2019;
f)Exhibit F; the Mother’s tender bundle of 11 pages.
The Court has had regard to all of the evidentiary material relied upon, including the documentary exhibits, and the oral evidence taken. The Court has also considered the submissions set out in the Case Outline documents and oral and written submissions.
Evidence
Throughout these reasons (including the Court’s discussions under s.60CC of the Family Law Act 1975) the Court will refer to a number of facts. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context.
The Father is aged 38 years, and the Mother is aged 32 years.
The parties commenced cohabitation in 2011. They finally separated in about April 2017.
The Father works as a self-employed professional in the arts industry. The nature of his work presently requires him to work on Fridays and Saturdays and often on Thursdays. He occasionally has work interstate and returns to Sydney on Sunday. The Court accepts the Father’s evidence in relation to his work and his work obligations.
The Mother is employed part-time as a health care worker. The Mother works on Mondays, Wednesdays, Thursdays and Fridays. The Maternal Grandmother works Mondays, Tuesdays and Wednesdays. The Maternal Grandfather works full-time.
The Father was supportive of the Mother during her pregnancy (and during the birth of the child, as best as he could), and conscientiously sought to educate himself in relation to childcare during the pregnancy.
For a relatively short period, after the child’s birth, the parties lived together with the child at their own residence. Following the parties’ separation the Mother went with the child to live with the Maternal Grandparents and the Mother’s brother, which arrangement continues to date. This residence is at Suburb E.
During the parties’ relationship, they occasionally had arguments during which they both yelled at each other, and the Court would infer that the parties each became angry during such arguments.
Following the child’s birth, the parties, from time to time, had difficulties in communicating with each other in relation to the child’s care. The Mother was, on occasion, quite particular and verbally short with the Father in relation to the care of the child. At times she was verbally critical of the Father’s care of the child. In response, and on occasion, the Father became angry and frustrated, raised his voice, swore at the Mother, and firmly closed doors. The Court finds that the Father nevertheless conscientiously sought to assist the Mother with the care of the child in the above circumstances.
The child, after the parties’ separation, spent occasional time with the Father at the residence of the Maternal Grandparents, until about August 2017. The Father had to undertake extensive road travel to go to the Mother’s parents’ residence, and he hired a car on occasion for this purpose. It is apparent that there was some underlying hostility and tension between the parties during this period in the aftermath of their separation, including at times when the Father spent time with the child at the residence of the Maternal Grandparents. Further, the Father felt uncomfortable interacting with the Maternal Grandparents and he was allergic to their dog. The Court does not accept that the Father ever yelled at the residence of the Maternal Grandparents, became furious, or left their residence in a rage.
In about August 2017 the Mother and the Maternal Grandmother requested the Father to sign a passport application for the child. The Father declined to sign the application as by this time he had lost trust in the Mother. Then in early September 2017, the Father received a letter from the Mother’s solicitor in relation to the child’s passport application. Thereafter, the parties’ ability to communicate effectively with each other in relation to the child deteriorated. The Mother insisted that the Father spend time with the child at the residence of her parents, and the Father’s time with the child lessened. The Father had proceeded, in the circumstances, to engage his own solicitor to negotiate with the Mother’s solicitor in relation to him spending time with the child. The Court accepts the Father’s evidence to the effect that following ceasing to spend time with the child in about August 2017 he was particularly keen to spend time with the child, and sought to spend time with the child.
The Father commenced proceedings in this Court on 24 May 2018, with a view to spending regular time with the child. This Court made orders on 20 December 2018, inter alia, that the child spend supervised time with the Father. On 1 July 2019, by consent, further interim parenting orders were made providing, inter alia, that the child’s supervised time with the Father continue to occur each Monday from 9:30 AM to 12:30PM, and each Thursday from 9 AM to 12 noon.
The child commenced to spend regular supervised time with the Father from about 20 January 2019. The child spent regular supervised time with the Father thereafter and throughout 2019, with the last visit being on 24 February 2020. This supervised time between the child and the Father has been positive. The child has enjoyed his supervised time with the Father and has been affectionate towards the Father during such time. The child’s relationship with the Father has developed positively during such time. The child has usually, at changeover, at the commencement of his supervised time with the Father, proceeded contentedly to begin his time with the Father.
In relation to the Court’s interim Orders that the child spend supervised time with the Father twice each week, the Father spent about two thirds of such ordered time with the child.
The child has not spent supervised time with the Father since 24 February 2020; as a result of financial difficulties experienced by the Father due to a reduction in his income flowing from bushfires and the Covid19 restrictions, the Father could not afford to continue to pay for supervised time with the child.
The Court accepts the Father’s evidence to the effect that post separation and thereafter he has conscientiously sought to spend regular time with the child, consistent with his employment obligations to work at certain times.
The Father, pursuant to the Court’s above orders, completed the Parenting after Separation course (the Father learnt strategies to communicate with the Mother, and he had communicated with her from time to time through emails when changing arrangements to spend time with the child: see the email communications between the parties in Exhibit C); the Triple P online positive parenting program (through this program, the Father learnt, inter alia, setting boundaries for children and communicating to the child in a proper way these boundaries, and he had implemented these boundaries with the child, and the child had responded well); and the Managing Anger course conducted by F Counselling, over 8 sessions from late October 2019 to early December 2019, for the equivalent of 20 hours tuition.
The Court accepts the Father’s evidence to the effect that he has consistently sought to adequately feed the child during supervised visits.
The Court accepts the Father’s evidence to the effect that whilst the Maternal Grandmother sought to be helpful in relation to the Father’s physical care of the child, the Father found her to be very assertive in their interactions. The Maternal Grandmother herself refers to her requests and comments to the Father to care for the child in certain ways following the child’s birth. There were occasions when the Maternal Grandmother, again seeking to be helpful, would take the child from the Father’s arms whilst he was trying to settle the child. The Court accepts the Father’s evidence that to avoid conflict with the Maternal Grandmother, he acceded to her requests and conduct in this context. The Court accepts there was an occasion in about mid-April 2017 when the Father verbally expressed his frustration with the Mother (relating to the Mother not permitting the Father to hold the child) to the Maternal Grandmother, and used swear words.
During the Father’s teenage years, he spent certain time in the foster care of families. During such time, on occasion, the Father babysat young children of the foster family, and learnt skills in taking care of young children.
The Father has some close friends. One of these close friends is Mr D who has a daughter aged about 2 ½ years. The Father often meets up with Mr D and his child. Mr D has regularly left his child in the sole care of the Father for short periods of time. The Father stated to the family report writer, when the Father was asked about emotional support, that he has a network of people who are his family, and the Court accepts this evidence.
As at the date of the final hearing, the Father had still been unable to work in his employment due to Covid19 restrictions.
The Father agreed that in about July 2014 he had gone inside a wardrobe having had a panic attack. He had told the Mother of this panic attack. The Court accepts the Father’s evidence in this context, and that since that time he has not had a panic attack.
The Father was asked what was positive about the Mother. He replied, inter alia, that the Mother was determined, she was caring, and that good things occurred in their relationship. He later stated that the Mother was a good parent and had contributed to the child being a well-behaved child.
The Father agreed that in the past the parties had difficulty agreeing with each other. He stated that they had agreed on the child’s name.
The Father agreed that the parties’ communication with each other after the child’s birth was not good.
The Father stated that the parties are now making small progress in their relationship which he agreed had been fractured. He stated his belief that during the last 12 months there has been a lot of progress between himself and the Mother in co-parenting the child, and that such progress would continue to be made. He referred to the compromise agreement reached with the Mother in relation to the venues for supervised time with the child.
The Father conceded that it was an omission on his part that he did not inform the mother in a timely fashion of his inability to resume supervised visits with the child after February 2020 by reason of his financial circumstances.
The Father agreed that the parties have not communicated directly with each other since early October 2017, however, this was due to the Mother making it clear to the Father that all further communications were to be through their solicitors.
The Father stated that if his work requires him to be away from Sydney, on the whole he would be away a maximum of two weeks from Sydney, and during this period he could not spend time with the child.
The Father stated that, in terms of his availability to spend time with the child, Tuesdays and Wednesdays would be safer compared to Mondays. He stated that if he was required to work on a Sunday he may not return home until the Monday.
The Father stated that he plays a number of different musical instruments.
The Father stated that he still has contact with one of his foster families being the G family.
The Father stated that he and the Mother have to do better to communicate.
The child has attended day-care since February 2018. Until recently when he commenced preschool (Mondays to Wednesdays), he was attending day-care Tuesdays to Fridays from 8 AM to 4 PM. The day-care is about 6 minutes’ drive from the Maternal Grandparents’ home. The preschool is about 10 minutes away. He has enjoyed day-care. The child had spent time with a nanny on Mondays.
The child has been enrolled and accepted into a preschool at Suburb H from Monday to Wednesday. He started attendance at this preschool in about late April 2020, from 8:30 AM to 3:30 PM. The Mother did not discuss this preschool with the Father prior to informing the Father of the child’s acceptance into the preschool on about 12 April 2020.
In oral evidence the Mother was asked whether at the time she chose the child’s preschool she knew that the Father’s schedule (for spending time with the child) was Mondays to Wednesdays. The Mother answered that she knew the Father generally was available from Mondays to Wednesdays. She stated, however, that at the time she put the child on the waitlist for the preschool she did not know that they would allocate Mondays to Wednesdays. She stated that on ascertaining the child’s allocated days at preschool, on 12 April 2020, she informed the Father that the child was due to start on 27 April 2020, but she did not specifically tell the Father that the child had been allocated Mondays to Wednesdays. She stated that it was neglectful on her part not to have informed the Father immediately of the child’s allocated days at preschool.
The Mother was asked by the ICL’s Counsel whether the child’s attendance at preschool on Mondays to Wednesdays was more or less important than the child’s time with the Father. The Mother responded by stating, inter alia, that both were very important and she could not say whether one was more important than the other.
The Mother stated that she had tried to get the child on a waitlist for a preschool in Suburb J but had been unsuccessful. She agreed that the child had never been on a waitlist for another preschool apart from the present preschool where he attends. She stated that it would have been best, on reflection, to have investigated other preschools in the area to check times.
The Court should state that it was common ground between the parties that if the Court was minded to order that the child spend time with the Father on Mondays, Tuesdays or Wednesdays, the child may need to attend another preschool, other than his present preschool.
The Mother has informed the Father through her solicitors that she proposes to have the child commence primary school in 2022.
The Mother agreed that she had not, until recently, provided the Father with the exact location of the child’s day-care centre. She stated that she should have been more forthcoming about this issue with the Father.
The Mother agreed that it was important for the child to have a relationship with the Father and that such relationship should have regular contact.
The Mother agreed that she could have been more flexible in facilitating time between the child and the Father on 26 April 2019.
The Mother agreed that the copy of the emails in Exhibit C between the parties were polite and respectful, including emails where the Mother was not able to facilitate time between the child and the Father.
The Mother agreed that it had been mean-spirited on her part to have taken a car toy (previously given to the child by the Father) from the child at the end of the supervised visit on 27 January 2019 and handed back to the supervisor.
The Mother agreed, in relation to a supervised visit on 7 April 2019, that she should have agreed with the supervisor to extend the visit for 10 minutes because the supervisor had arrived late.
The drive-time from Suburb E to Suburb K is about 30 minutes. The drive-time from Suburb E to Suburb C is about 20 minutes.
The Mother stated that she proposes that the child continue to attend day-care on Thursdays and Fridays.
The Mother was asked whether, apart from weekends when she proposed that the child spend supervised time with the Father, there were other days which might work. The Mother responded by stating that Thursdays was one of the days scheduled for visits over the last few months, and stated that this day might be suitable. The Mother did not believe it was in the child’s best interests to change the child’s preschool days being presently Mondays to Wednesdays.
The Mother stated that the Father’s former foster family, the G family, were well-adjusted people and might be able to supervise the child’s time with the Father in the transition period from supervised to unsupervised time. The Mother stated that maybe an intermediate period of supervision would be a couple of months or “three months or sooner”.
The Mother stated that there has been marginal improvement in her communication with the Father; she stated that she tries to think that she can improve her communication, and she is taking steps in the right direction, although there is “a way to go”. The parties have individually participated in courses to assist them in this regard. The Mother stated that the parties could do some sort of family counselling to assist in communication which she believed would help in the long-term. She stated that family counselling could be a way to expedite an increase in the parties’ communication.
Mr D
Mr D has known the Father for about four years. He works as a freelance professional and often works alongside the Father. Mr D refers to the Father being hard-working and being well respected in the industry and performing his work professionally. He meets with the Father regularly with his own daughter L. He is happy to leave the Father alone with his child. Mr D refers to observing the Father being calm and patient in his interactions with the child and observing a bond between them. He refers to the child being clearly at ease with the Father and having no issues taking instructions from the Father, even if the Father said, “no more lollies for today.” The Court accepts his evidence.
The Maternal Grandmother
The Maternal Grandmother, a health care professional, does not work on Thursdays or Fridays or the weekends.
The Maternal Grandmother has facilitated the child’s visits with the Father on Thursdays since July 2019. She stated that recently she has also facilitated a few Monday visits.
The Maternal Grandmother gave oral evidence. The Court does not propose to set out the entirety of such evidence.
The Maternal Grandmother stated that she had not read the supervised contact reports in Exhibit A.
The Maternal Grandmother stated that she works Mondays, Tuesdays, and Wednesdays from 9:30 AM/10 AM to 3 PM.
The Maternal Grandmother stated that she proposed to drop off and pick up the child at and from preschool on Mondays and Wednesdays. She stated that she could assist (with changeovers) on Thursdays but not Fridays. She stated that she could possibly assist with changeovers on her work days if the changeovers occurred at 9 AM and after 3:30 PM, and it would need to be close to Suburb M where she works.
The Maternal Grandmother stated that the child loves the Father. She agreed that the relationship between the child and the Father was important.
The Maternal Grandmother stated that she had never observed the Father to take illicit drugs or to be under the influence of such drugs. She had not seen the Father drink alcohol to a level that concerned her. She had not seen the Father drunk.
The Family Report
Mr N, family consultant, prepared a Family Report. He interviewed the parties, the Maternal Grandmother, and the child, on 17 July 2019. Inter alia, the family report writer’s sources of other information included extensive supervision reports from B Families.
The Mother told the family report writer that she intends to live with her parents indefinitely.
The Mother told the family report writer that she wanted the child’s supervised time with the Father to continue. When asked how long supervision might apply, she mentioned anger management, drug tests and a questionable supervisor’s report. She also referred to the Father not having demonstrated that he has dealt with his violence, and his home was inadequate and not safe.
The family report writer stated that insofar as the child’s parents are in dispute about his parenting arrangements and do not communicate, his well-being is threatened.
The family report writer observed that the parties did not mention mental health as an issue.
The Father reported to the family report writer that his current relationship with the Mother was non-existent. He stated that the parties rely on brief emails if arrangements need to be changed.
The Father told the family report writer that there were a lot of things he could offer the child and teach him; lots of “skill sets”.
The Mother told the family report writer that in the future the child may spend nights with the father, however she had no idea when that might happen.
The family report writer stated that it was apparent that the child was surrounded by a group of loving adults by whom he is nurtured and cared for. He stated that it was clear that the child has a substantial relationship with the Mother and relates positively to the Father.
During the observation session with the child, on the Father entering the observation room, the child let the Mother leave. The child engaged the Father without hesitation. He smiled at the Father, hugged him, and showed him a basket of dinosaurs. The Father related to the child at his level. It was warm and involved. When the session finished, the child hugged the Father.
The family report writer referred to certain supervision contact reports. He referred to the Father’s behaviour becoming increasingly child focused and competent. He observed that by the end of January 2019, it seemed that the child was becoming more comfortable with the Father. By early March 2019, it was reported that the child was referring to the Father as “daddy”. The family report writer refers to the Father being child focused.
Under the heading “Evaluation”, the family report writer stated, inter alia, that the Father presented appropriately and with a measure of composure. He stated that, in the absence of professional opinion to the contrary, the Father’s family of origin does not preclude the legitimacy of his application to spend time with the child, and the child’s need for a relationship with him.
The family report writer referred to his observations of the child with the Father when the child related to the Father without hesitation. The family report writer stated that the Father was attentive and managed the child with reinforcement, encouragement, guidance and affection. When the child wanted to return to the Mother, the Father pacified him gently and successfully.
The family report writer stated that the supervisor’s reports were positive and indicated a child who, over six months of regular and frequent involvement, has become “relaxed and comfortable” with the Father, and was reassured by the Father. He stated that the supervision reports could be summarised by the supervisor’s comment, “The Father was calm and caring towards (the child). They interact well together. He was child focused. He understood what (the child) wanted.”
The family report writer stated that if the Court finds that the Father is not a threat to the child, as asserted by the Mother, then his assessment indicated that the child might spend unsupervised time with his Father, gradually increasing from two hours on two days per week, to 7 hours on one day per week.
The family report writer stated that unsupervised time would provide the child with a more realistic understanding of the Father and the Father would be able to offer the child a more stimulating environment outside the confines of a fast food restaurant and play centre.
The family report writer stated that it was considered that 8 hour days per week, as sought by the Father, was excessive, given the child’s attachment to the Mother. However, as the child gathers familiarity with, and trust in, the Father, increased time or alternative weekends, might apply by the time the child starts school.
Under the heading “Recommendations”, it was recommended, inter alia, that, if it was found that the child is not at risk with the Father, that supervision be dispensed with, but the current times remain; after three months, the child might spend three hours with the Father on two days per week; after two months the child might spend four hours with the Father on two days per week; when the child turns three years old the child might spend seven hours with the Father on one day per week, plus brief telephone, Skype or FaceTime contact on two days per week; and changeovers might be facilitated by a contact agency.
The family report writer gave oral evidence. The Court does not propose to set out the entirety of his oral evidence.
The family report writer stated that the child’s relationship with the father and opportunities to develop and expand that relationship should be given priority over preschool.
The family report writer confirmed that his present recommendation was that supervision of the child’s time with the father be dispensed with if it is found by the court that the child is not at risk with the father.
The family report writer stated that if the court finds that the child is not at risk with the father, then overnight time “is the natural course of events”.
The family report writer stated that he did not think the mother’s pathologies (the mother’s asserted anxiety in relation to the child spending time with the father having been brought to his attention) should necessarily impact upon the child’s relationship and need for a relationship with the father.
The family report writer was questioned in relation to the child beginning to spend overnight time with the father, and this evidence was given:
“The father is seeking, in less than two years time, to be spending overnight time with the child. Given that the child now is only three years of age and that the father to date has only had supervised time with the child, is the court not in a – do you agree that it is difficult to have a crystal ball and be able to determine what the child’s best interests will be once he commences school?---Well, obviously, but, in general, all I can say is that a three year old child will often spend alternate weekends with the non-residential parent without any issues or concerns. I don’t know that this one is any different to the average. He certainly is emotionally secure. He’s a stable child. He’s an intelligent child and capable child. He has a relationship with his father, established over a long period of time, and I don’t see any impediments to unsupervised, even night time, provided the father has the domestic facilities to accommodate him.”
The family report writer was questioned about the parties’ communication. This evidence was given:
“If each of the mother and father had said they were committed to improving their communication in the future, would that vary your opinion in any way?---Well, it would suggest that they’re on their way to being able to make joint decisions regarding the welfare and parenting of their child.”
The Court accepts the evidence of the family report writer, subject to any different view expressed by the court below, whether expressly or by implication.
Relevant legal principles
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
When making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.
The best interests of the children
Section 60CC considerations
Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration
The Mother has been the primary carer of the child from birth to date.
The child has a meaningful relationship with the Mother and will benefit from a continuance of that relationship.
During the parties’ relationship, the Father assisted the Mother with the care of the child.
The child has spent daytime time with the Father since separation. In particular, he has spent extensive supervised time through B Families in 2019 and up to about 24 February 2020. Since about August 2019 and up to late February 2020, the child has often been spending 3 hours with the Father on two days each week.
The Father has conscientiously sought to spend regular supervised time with the child pursuant to the Court’s interim orders, consistent with his employment obligations. The child has a meaningful relationship with the Father and will benefit from the continuance and enhancement of that relationship.
Should the child begin to spend unsupervised time with the Father, until the child turns 5 years of age, on a graduating daytime basis (after an initial period of 6 weeks of supervised time, taking into account the child’s last time with the father on 24 February 2020 but observing that the child enjoyed, in the words of the family report writer, a “substantial” relationship with the father at that time) on Tuesdays (commencing 3 hours for 2 weeks on Tuesdays, then 5 hours for 2 weeks on Tuesdays, and then 7 hours on each Tuesday), there is a significant prospect that the child’s present positive relationship with the Father can be both maintained, further developed and enhanced, in a timely fashion.
The Court recognises that the above rate of progression of the child’s daytime time with the father is greater than proposed by the family report writer. The Court is of the view that it is important in this case, so as to maintain and enhance the child’s substantial relationship with the father, that there be a timely progression of the child’s daytime time with the father up until the time he turns five years of age. The Court is of the view that the child should be able to emotionally cope with such progression and extent of time, with the Court also taking into account in this context the family report writer’s evidence that the child is emotionally secure, stable, and an intelligent and capable child.
Should the child begin to spend unsupervised overnight time with the Father, after the child turns 5 years of age, on a graduating basis, in accordance with the ICL’s proposals, there is a significant prospect that the child’s present positive relationship with the Father can be both maintained, further developed and enhanced. In this context, the Court observes that the ICL’s proposed Order 3d. would, inter alia, merely require the father to drop off the child at school on the Thursday morning.
And further, should the child begin to spend unsupervised overnight block time with the Father, after the child turns 6 years of age, during school holiday periods, in accordance with the ICL’s proposals, there is a significant prospect that the child’s present positive relationship with the Father can be both maintained, further developed and enhanced.
A practical advantage of the above Tuesday time (and overnight time commencing on Tuesdays after school) is that the Mother does not work in employment on Tuesdays and can assist with changeovers (should the Mother prospectively be required to work on Tuesdays, then there is a real prospect that the Maternal Grandmother can assist with changeovers).
The ICL’s proposed FaceTime time and time to be spent by the child with the Father on special occasions will also promote the maintenance, further development and enhancement of the child’s meaningful relationship with the Father.
The Court is concerned that should it make orders in accordance with the Mother’s proposed orders, providing for indefinite supervised time, the child’s relationship with the Father will not be developed and enhanced in a timely fashion. Further, such orders would not provide the child with a fulsome understanding of the Father, and militate against the child and the Father being able to further develop their relationship in different settings.
The Court is concerned that the ICL’s proposed orders providing for the child to spend time with the Father, until he turns five years of age, on Mondays and Thursdays, is impractical because the Court accepts the Father’s evidence that he often has to work on Thursdays. (The Court has not overlooked in this context that the father had spent supervised time with the child on Thursdays on occasion). Further, it is more practical for the parties, and reduces the risk of conflict between them in the presence of the child, at least until the child turns five years of age, to only have to conduct changeovers on one day each week.
The Court recognises that the Mother regards the child’s attendance at his present preschool from Mondays to Wednesdays as important for the child. Nevertheless, as discussed by the family report writer in his oral evidence, the development of the child’s meaningful relationship with the Father should be given greater weight, in the circumstances, than the child’s need to attend the preschool on Mondays to Wednesdays. Further, the Court observes that the Mother is presently proposing that the child commence primary school in 2022, being some time away, thus allowing the child opportunities to attend preschool before the commencement of primary school.
The Court gives significant weight to this meaningful relationship primary consideration.
Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In the view of the Court, there will be no unacceptable risk of harm posed to the child in spending unsupervised time with the Father as discussed above under the meaningful relationship primary consideration.
The Mother asserts her concern that the Father may be using illicit drugs and abusing prescription medications (in particular Valium). The Father has undertaken certain drug testing. The results are discussed below. The Court does not accept that the Father is abusing illicit drugs or prescription medications (including Valium).
The Court accepts the Father’s evidence in relation to illicit drug use, Valium use and alcohol consumption.
The Court does not accept that the Father has a dependency upon illicit drugs or prescription medications including Valium. The Court accepts the Father’s evidence to the effect that on occasion he ingested prescribed Valium to treat anxiety relating to the provision of urine samples. The Court does not accept that the Father has not been candid with the Court in relation to these issues. There will be no unacceptable risk of harm posed to the child in spending unsupervised time with the Father in this context.
The Father admits to using the illicit drug cocaine during the parties’ relationship. He mostly used that drug in the context of social settings. The Mother and the Father would occasionally consume cocaine together during their relationship. He ceased using cocaine when the Mother was pregnant with the child in about 2016.
The Father also admitted to using the illicit drug MDMA. He has not used that illicit drug since the Mother’s pregnancy with the child.
The Father was prescribed Valium for panic attacks in about mid to late 2000. His last panic attack was in about 2014. In the 12 month period prior to about 2014 he rarely had panic attacks. The Father had been diagnosed with anxiety as a result of being previously assaulted. The Father used Valium since the start of these proceedings and in the lead up to certain drug tests related to these proceedings, discussed below. The Father last used Valium in about March 2020. The Father used Valium to help him provide urine samples for the drug tests. He had discussed with his GP his anxiety in connection with providing a urine sample for the drug tests.
The Court should state that the Father had referred to his use of prescribed Valium in paragraph 20 of his Affidavit sworn 27 June 2019 and which had been sent to the Mother’s solicitor and ICL on 30 June 2019 (the Court noting that the reference in paragraph 18 of that Affidavit to 27 March 2019 appearing to be in error, noting that paragraph 109 of the Father’s trial affidavit refers more accurately to the provision of a urine sample at the Suburb O Collection Centre on 20 June 2019). In this context, the Mother had referred in her own trial affidavit to the fact that “The Father has admitted in a previous Affidavit to continuing to use Valium.”
The Father provided a hair sample, for hair drug testing, on 29 May 2018, and it was chain of custody.
The Father underwent certain drug tests at the request of the ICL.
On 4 March 2019 the Father provided a hair follicle sample for hair drug and alcohol testing purposes. The test results on 13 March 2019 were negative for certain drugs and reported low to moderate consumption of alcohol. The costs of the tests were $753 paid by the Father (the Court observes that certain hair colouring of the Father’s hair occurred after 4 March 2019, on 7 March 2019).
The ICL requested the Father undertake a drug urinalysis test within 48 hours of 25 March 2019. On 26 March 2019, the Father was in Melbourne for work. On that day he obtained a medical certificate from a General Practitioner in Melbourne certifying that the Father had a medical condition and was unfit for work for a day. On 27 March 2019, the Father obtained a medical certificate from a GP in Sydney stating that he had tonsillitis and was on treatment for it with antibiotics and analgesia from 27 March 2019 for a closed period. The Father’s analgesia contained paracetamol and codeine. The Father gave a urine sample on 27 March 2019. The toxicology report stated that the drugs detected were codeine.
The ICL requested the Father undertake a drug urinalysis test within 48 hours of 18 June 2019. On 20 June 2019, the Father was in Tasmania for work and provided a urine sample on that date. The urine drug screen report of 21 June 2019 indicated not detected results for certain illicit drugs although further testing was required for benzodiazepines. The Court accepts the Father’s evidence that he had been previously prescribed Valium, benzodiazepine, by his GP, before this particular urine sample was given. The later report of 26 June 2019 indicated not detected for benzodiazepines.
The ICL requested the Father undertake a drug urinalysis test within 48 hours of 16 September 2019. The Father’s solicitor overlooked the email request from the ICL and the Father received the request on 19 September 2019. The Father was in Town P when he received the email and travelled to Town Q to provide the sample on 21 September 2019. The pathology report dated 24 September 2019 indicated none detected for alcohol and drugs.
On 11 March 2020, the ICL requested the Father to undertake drug urinalysis within 48 hours. On this date the Father provided a sample. The test results were not detected for certain stated drugs, and ultimately nil detected for benzodiazepines as well.
The Mother asserts her concern that the Father may be abusing alcohol. The Court does not accept that the Father has a dependency upon alcohol or presently consumes alcohol to excess. The Court accepts the Father’s evidence in relation to this issue of alcohol consumption. The Court refers to the alcohol testing results, discussed above. The Court observes that the Mother has not seen the Father consume alcohol since their relationship ended.
The Court observes that there is no suggestion in the supervision contact reports, over an extended period, that the Father was adversely affected by alcohol or drugs.
The Court does not accept on the balance of probabilities that the Father perpetrated family violence against the Mother, as alleged by the Mother. The Court does not accept that the Father proffered physical violence towards the Mother after the child’s birth, such as allegedly charging at her or slamming his fists down on the couch close to the Mother. The Court does not accept that the Father perpetrated coercive controlling family violence against the Mother, as alleged by the Mother; the Court does not accept that the Father threatened the Mother in this context as alleged by the Mother. The Court does not accept that the Father, during the parties’ relationship, became violent or angry after drinking alcohol. The Court does not accept that the Father forced the Mother to use cocaine during their relationship, or that he sexually forced himself upon the Mother. The Court does not accept that the Father has been verbally threatening towards the Mother in his communications with her post separation.
The Court does not accept on the balance of probabilities that the Father deliberately mishandled the child after the child’s birth. The Court does not accept that the Father was neglectful of the child during supervised visits.
On the balance of probabilities, the Court does not accept that the Mother perpetrated family violence against the Father.
The Father resides in a three-bedroom unit in Suburb K. Presently, he does not have a car or access to a car. He resides with a friend, Mr R, aged in his mid-30s, who is in the workforce. Mr R is the leaseholder of the unit, and has been residing in the unit for 12 years. The Father has resided in the unit since about June 2017. Mr R does not presently smoke cigarettes, and in about mid 2017 he ceased the use of marijuana. He does not use illicit drugs. The unit is kept clean and tidy. The unit has a spare third bedroom in which the child can potentially stay overnight. The Court is satisfied that the Father’s accommodation is satisfactory for the child. The Court does not accept that Mr R poses a risk of harm to the child. The Court is satisfied that the Father’s rented unit is safe for the child to spend time in. The Court is satisfied that the Father will ensure that the child will not be exposed to any risk of harm if present on the unit block’s balcony; the Court accepts the Father’s evidence in this context.
The Court does not accept that the Father presently has a significant anger management problem. Again, during the parties’ relationship, they occasionally had arguments and they both yelled at each other during some of the arguments, and the Court would infer that the parties each became angry during such arguments. The Court has previously discussed the Father’s anger and frustration on occasion in communicating with the Mother on matters relating to the child. The Court accepts the Father’s evidence that there were instances where the Father chose to walk away from (historical) arguments with the Mother rather than remaining and potentially escalating the argument. The Father participated in a Managing Anger course conducted by F Counselling, over 8 sessions from late October 2019 to early December 2019, for the equivalent of 20 hours tuition; in this course the Father learnt how to acknowledge issues and to let go of those issues, and how to regulate anger.
Further, the Court carefully observed the Father giving his oral evidence during which time he maintained his composure, despite extensive and pointed cross examination by the Mother’s Counsel in particular. The family report writer referred to his assessment indicating that the Father related to the child appropriately, and that the child interacted with him closely, eagerly and without hesitation. The family report writer had referred to the positive supervision reports in which the Father was calm and caring towards the child. The child and the Father had interacted well together and the Father was child focused, and understood what the child wanted. There is no significant suggestion in the supervision contact reports of the Father experiencing emotional dysregulation during the child’s supervised time with him. The Court refers to the evidence of Mr D in this context, in which he refers to the positive manner in which the Father had engaged with the child.
Further, the Court does not accept that the Father has exhibited significant anger towards the Mother during the course of the formal supervised visits through B Families. The Court observes that in relation to a cancelled supervised contact visit due to occur on 28 November 2019, the Father, in contrast to the Mother, was very understanding and calm during his telephone conversation with the supervisor who had mis-scheduled the visit. The Court also refers to the Father’s oral evidence in re-examination in relation to reading contact reports; the Court accepts the Father’s evidence to the effect that he now understands that he cannot control others and has to be the strongest person for the child.
Further, the Court accepts the Father’s evidence that he believes that his previous anger issues predominantly related to his experience of anxiety. The Court finds that the Father has insight in relation to his anxiety and has obtained treatment for anxiety.
The Court finds that the Father, post separation, when he has been spending time with the child, has conscientiously sought to adequately feed the child. The Court accepts the Father’s evidence in this context, and the Court refers to the supervision contact reports (Exhibit A). The Mother stated that in hindsight she should have raised her concerns about the amount of food that the Father was feeding the child with the Father directly.
The Court does not accept that the Father will be unable to financially support the child when spending time with him, as discussed above under the meaningful relationship primary consideration. The Court accepts the Father’s evidence that he has sought government assistance relating to his loss of income during the Covid19 crisis, and that he has been assisted by his friends with funds to cover his living expenses. It accepts his evidence, inter alia, that he has obtained a deferral of legal fees owed to his solicitor until the Father is able to resume work again. It accepts his evidence to the effect that his rental position is satisfactory. It otherwise accepts the Father’s evidence relating to his usual annual income.
Section 60CC(3) - Additional Considerations
(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The child is too young to express a relevant view.
(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The Court refers to its discussions above under the meaningful relationship primary consideration.
The child has positive relationships with the Maternal Grandparents.
(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
The Mother has taken such opportunities. The Father has taken such opportunities, although he spent irregular time with the child at the residence of the Maternal Grandparents following separation, in particular by reason of feeling uncomfortable interacting with the Mother and the Maternal Grandparents, in addition to being allergic to their family dog. Further, due to the Father’s financial difficulties arising out of bushfires and Covid19, he was unable to continue paying for supervised time beyond about late February 2020.
(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
Until the Father’s income declined, as discussed previously, the Father usually paid child support of about $354 per month. He was in arrears at the time of the Mother’s trial Affidavit, not having made payments to the Mother since about January 2020.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The Court refers to its discussions above under the primary considerations, including the reference to the child’s existing meaningful relationship with the Father.
In the view of the Court, particularly noting the proposed graduating time (including overnight time) to be spent by the child with the Father, as discussed above under the meaningful relationship primary consideration, there is a significant prospect that the child will cope with changes to his circumstances in this regard, and not suffer significant emotional harm. Further, there is a significant prospect that the proposed time to be spent by the child with the Father will not detrimentally affect the child’s meaningful relationship with the Mother.
(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Presently, the Father is living in Suburb K without a motor vehicle. The Mother is residing in Suburb E with the Maternal Grandparents. The Father has practical access to train travel. The Court refers to its discussions above and below as to changeover, and as to relevant practicality issues, taking into account the father’s work obligations.
(f) The capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
(iii) to provide for the needs of the child, including emotional and intellectual needs;
The parties have such capacities.
The Mother has usually sought to facilitate the child spending supervised time with the Father. However, on occasion, when the Father and/or supervisor sought to change the days for supervised visits, or seek to make up time, the Mother and Maternal Grandmother were inflexible.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
The child’s maternal family are of Country S heritage and he will remain living with the Mother and the Maternal Grandparents for the foreseeable future.
(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The parties have usually demonstrated appropriate attitudes. The Mother did not fully consult with the Father in relation to her selection of the child’s preschool. The Court also refers to its discussions above, in particular under the primary considerations.
(j) Any family violence involving the child or a member of the child's family
The Court refers to its discussion above under the need to protect primary consideration.
(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter
Not applicable.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Final parenting orders, as discussed above under the meaningful relationship primary consideration, providing, inter alia, for the child to begin to spend graduating unsupervised time with the Father would be least likely to lead to the institution of further proceedings in relation to the children.
m) Any other fact or circumstance that the Court thinks is relevant
As to changeovers before the child commences primary school, and observing that presently the Father does not have a motor vehicle, it will be more practical for the changeover to occur at a train station, as proposed by the Father. A public place such as a train station will also minimise the risk of conflict occurring between the parties in the presence of the child. The Court has not overlooked the recommendation of the family report writer that changeovers might be facilitated by a contact agency, however, the Court is of the view, again, that the train station changeover will minimise the risk of conflict. Further, in this context, the Court observes that some time has passed since separation with a consequential reduction in disputation between the parties.
The Father proposes Suburb C train station, which, on the evidence, would appear to be more than halfway the distance between Suburb K and Suburb E. The drive time between Suburb E and Suburb C is about 20 minutes. By reference to the Court’s discussion under the meaningful relationship primary consideration, until the child turns five years of age, changeovers will only occur on a Tuesday. In these circumstances, and again noting the Mother does not work on Tuesdays, there is no significant practical impediment to the Mother facilitating such changeover on the Tuesdays at Suburb C train station, until the child turns five years of age. After this time, changeovers can occur at the child’s primary school, or otherwise at Suburb C train station, in the absence of agreement between the parties.
The ICL’s proposed orders relating to FaceTime (proposed Order 5), communication via email and text message (proposed Order 6), and proposed Orders 7, 8, 9, 10, 11, will be in the best interests of the child.
The ICL’s proposed Orders 9 and 10 will ensure that the parties are kept informed, in a timely fashion, of any health issues affecting the child, whilst the child is in the care of the other parent. The ICL’s proposed Order 8 will facilitate both parents meaningfully participating in the child’s school life.
The Court does not propose to make the Father’s proposed Orders 11 to 14 relating to passports and overseas travel. As discussed below, the Court proposes to make an order for equal shared parental responsibility, and in due course, the parties can meaningfully discuss, if the need arises, the issue of overseas travel for the child.
The Court would anticipate the parties, in due course and in anticipation of the child commencing primary school, being able to meaningfully discuss the contents of the Father’s proposed Order 15 relating to the parties attending the child’s sporting events and other extracurricular events involving the child.
As to the Mother’s proposed Order 16 (inter alia, requiring the Father to immediately notify the Mother and return the child to her in the event that he is unavailable to care for the child) it will not be in the best interests of the child to make such a strict order. The evidence before the Court (for example, the email communications between the parties and B Families in Exhibit C) indicates that historically the Father has, on occasion, sought to rearrange times to be spent with the child when his employment obligations clashed with his scheduled time with the child. The Court is confident, based on all the evidence before it, that the Father will likely contact the Mother in a timely fashion if he is unable to take up his scheduled time with the child pursuant to the Court’s orders by reason of his employment obligations or otherwise.
In the immediate above context, the Court should also refer to the ICL’s proposals for the child to spend time with the father during school holidays (see proposed Order 3e. and 3g. in her Amended Minute of Orders, and the Court’s discussion above under the meaningful relationship primary consideration), noting the father’s work obligations usually require him to work on weekends. The Court observes firstly that such holiday time will not commence until after the child turns 6 years of age, with the child now being about 3 years, 3 months of age. Secondly, the Court accepts the father’s evidence to the effect that the ICL’s proposed school holiday time was realistic, and that he could in due course deal with (the Court inferring that he could make necessary arrangements) the issue of school holiday time requiring him to care for the child, inter alia, on weekends. And again, the Court is confident, based on all the evidence before it, that the Father will likely contact the Mother in a timely fashion if he is unable to take up his scheduled time with the child pursuant to the Court’s orders by reason of his employment obligations or otherwise.
Parental responsibility
The Mother seeks an order for sole parental responsibility in relation to the child, whilst the Father and ICL seek an order for equal shared parental responsibility.
If the Court were to make an order that the Mother have sole parental responsibility in relation to the child, that would entail the Mother having the sole entitlement to make major decisions affecting the child’s care welfare and development, without reference to the Father.
In Lansa & Clovelly [2010] FamCA 80, Murphy J discussed the statutory framework under the Act in relation to the issue of parental responsibility.
136. The parents of children each have, by the fact of parenthood alone, parental responsibility for each of those children (s 61C). That means that each parent has, in respect of each child, “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s 61B). That situation is not affected by any change in the nature of the parent’s relationship, for example by them separating or re-marrying (s 61C(2)).
137. Parental responsibility can, though, be altered by the making of a parenting order by the Court but only to the extent that the order confers duties, rights, responsibilities or authority in relation to the particular child or children the subject of the order. However, a parenting order does not per se remove or diminish any aspect of parental responsibility; the order must expressly do so or doing so must be necessary to give effect to the order. (s 61D(1) and (2)).
138. But, when a court is to make a parenting order, it must apply a presumption that it is in the best interests of the subject children for their parents to have “equal shared parental responsibility” for those children. The latter expression is not defined, but reference to s 61B would seem to render a meaning that all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children are to be shared, and shared equally.
139. The statutory presumption just referred to is rebuttable in circumstances where the Court has reasonable grounds to believe that there exists abuse or family violence as defined (s 61DA(2) or where the Court considers that it is in the bests interests of the children for the presumption to be rebutted (s 61DA(4)).
140. No statutory provision other than s 60CC governs how best interests is to be determined in that context. Section 60CC, it has been noted, is headed “how a court determines what is in a child’s best interests”. It is, then, again called into use in this context.
141. The ambit of the legislative provisions referred to thus far is narrowed by reference to s 65DAE and the Note to s 65DAC. The latter section makes it clear that sharing parental responsibility (whether equally or not) is not a passive activity; it requires those having shared parental responsibility, or aspects of it, to make joint decisions and to consult and attempt to reach agreement in order to do so. However, the section goes on to provide that consultation is not required unless the decision is about a “major long-term issue” – an expression that is defined.
142. Section 65DAE and its Note underline the last point by providing that there is no necessity to consult a person who has or shares parental responsibility about decisions that are made in relation to the child during the time that the child is spending with that person, that are not decisions about “major long-term issues”. It is to be noted that the section is made subject to any provision to the contrary in a parenting order. (s 65DAE(2)).
143. “Major long-term issues” is defined in s 4:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future);
(b) the child’s religious and cultural upbringing; and
(c) the child’s health
(d) the child’s name;
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
144. Thus, if the presumption of equal shared parental responsibility is not rebutted, then, absent specific provision in the parenting orders, the consultation and genuine effort to reach a decision required by s 65DAC applies, but (subject to specific provision in the Orders) only in respect of “major long-term issues”.
145. Equally, the application of the presumption will mean that decisions during time spent between parent and child that are not about “major long-term issues”, can be made by the parent exercising the time without the necessity for the consultation and joint effort otherwise required in respect of “major long-term issues”. (s 65DAE(1) and (2)).
The Court recognises that the parties retain a level of distrust between each other in relation to the child (for example, the Court refers to the Mother’s proposed orders for continued supervised time, and the Father’s taking of a photograph of the child’s arm on about 27 January 2020-Exhibit D). And it recognizes there was some not insignificant level of disputation between the parties during their relationship on occasion.
Nevertheless, on a positive note, the parties’ level of disputation post separation has dissipated to a not insignificant extent. The parties are willing and committed to improving communications between themselves in relation to the child (in this context the Court refers to the oral evidence of the family report writer that this fact indicates the parties are on their way to improving communication). The parties have been able to communicate with each other through email communications. The Court refers to the various email exchanges between the parties (including B Families) in Exhibit C which indicate polite and respectful communication between them in relation to the issue of re-arranging times for the child to spend time with the Father, during the course of the period from about late April 2019 to about December 2019.
The child is almost 3 ½ years of age. She has over 14 years left until reaching adulthood. It is a very serious matter to exclude a parent from decision making in respect to major decisions affecting the child. In Lansa & Clovelly [2010] FamCA 80, Murphy J stated:
148. The definition of “parental responsibility” in s 61B refers to “all of” the powers, duties etc of parents. It is strongly arguable, then, that the expression “sole parental responsibility” means, or is intended to mean, that the specified parent has “all of” the powers, duties etc in relation to the specified children. If so, it seems to me equally strongly arguable that the expression means, or is intended to mean, that the other parent has no parental responsibility – that is none of the duties, powers, responsibilities and authority over their child otherwise conferred by law.
149. If that is the meaning of the expression, then, in my view, a court should take account of a particular additional consideration (see s 60CC(3)(m)): the exercise of discretion in favour of excluding one parent from the decision making and responsibilities for their children in respect of “major long-term issues” in the manner just outlined - particularly where, as here, there are many years until the children turn 18 – is, it seems to me, a very significant interference with the fundamental rights of a person. There is no doubt that those rights must give way in favour of an outcome which is found to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U [2002] HCA 36; (2002) 211 CLR 238).
The child loves each parent and this is recognized by the parties and the Maternal Grandmother. The Father, in particular, is hopeful that a decision about parenting will lead to a settling down of the parties’ differences in relation to the child’s time with the Father.
The Court is of the view that there is a real prospect that the parties will be able reach agreement in relation to major decisions affecting the child’s care, welfare and development, in a timely fashion and without significant conflict.
The child should have the benefit of having each parent making a contribution into major decisions affecting him.
The presumption of equal shared parental responsibility is not rebutted by reference to the child’s best interests. And further, by reference to the Court’s previous findings in relation to the issue of alleged abuse and family violence, such presumption is not rebutted.
To assist the parties, if they require it, in reaching agreement in a timely fashion in relation to major decisions affecting the child, the ICL’s proposed Order 12 relating to mediation will be an Order in the best interests of the child.
It will be in the best interests of the child that the parties have equal shared parental responsibility for him.
As to equal time, it will not be in the best interests of the child that this occur; neither party proposed such a regime, and the Court refers to its discussion above under the meaningful relationship primary consideration. In any event it would probably be impracticable by reason of the father’s work obligations.
As to substantial and significant time, as defined under s65DAA (3) of the Act, the parties did not seek Orders embracing such time. Such time is probably not practicable by reason of the father’s work obligations. Such time would not be in the best interests of the child, and the Court refers to its discussion above under the meaningful relationship primary consideration, noting the father has been spending supervised daytime time with the child, and the need to gradually increase the child’s time with the father.
Summary
Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following Orders:
(1)The parties shall have equal shared parental responsibility for the child X (“the child") born in 2017.
(2)That the child live with the Mother.
(3)That the child spend time with the father as follows:
Until the child turns five years of age:
(a)Each Tuesday from 8:30 AM to 11:30 PM for 6 weeks in the father’s home supervised by B Families, with the parties to each share in the cost of the supervision; and then,
(b)Each Tuesday from 8:30 AM to 11.30 AM for two weeks, then,
(c)Each Tuesday from 8:30 AM to 1:30 PM for two weeks, then,
(d)Each Tuesday from 8:30 AM to 3:30 PM.
After the child turns five years of age:
(a)Each alternate week on Tuesday from after school or 3:30 PM if not a school day to Wednesday before school or 8:30 AM if not a school day for four occasions commencing on the first weekend after the child turns five; and thereafter;
(b)Each alternate week on Tuesday from after school or 3:30 PM if not a school day to Thursday or 3:30 PM if not a school day.
After the child turns six years of age (in relation school holidays):
(a)For the first half of all term school holiday periods from after school on the last day of term for seven nights with changeover to occur at 4 PM;
(b)In the Christmas school holiday periods on a week about basis commencing from after school on the last day of term four for seven nights and each alternate seven nights thereafter.
From the commencement of these Orders:
(a)On Father’s Day from 10am to 2pm;
(b)From 2pm to 6pm on Christmas Day;
(c)On the child’s birthday from 10am to 2pm or if a school day then from after school or 3pm to 7pm.
(4)That changeover occur at the entrance of Suburb C train station and, following the child commencing primary school, at the child’s primary school. Otherwise, during school holidays and/or on special occasions, changeover shall be, in the absence of agreement between the parties, at the entrance of Suburb C train station.
(5)That the parents have FaceTime with the child each Wednesday between 6pm and 6.30pm when the child is in the other parent’s care pursuant to these Orders.
(6)That the parents communicate urgent matters in relation to the child via text message and non-urgent matters in relation to the child via email.
(7)That within 7 days of the date of these Orders, the parents shall provide to each other their current mobile telephone number, email address and current residential address and any changes thereto within 48 hours of any such change occurring.
(8)That these Orders are sufficient to ensure that any school or preschool or day care facility that the child may attend will have authority to provide to both parents, all material usually available to parents and both parents are authorised to attend any school functions and events usually open to parents.
(9)That should the child require urgent medical care or be hospitalised, then the parent with care of the child shall contact the other parent as soon as possible and provide details sufficient for the other parent to attend the hospital or medical facility to which the child has been admitted.
(10)That the parents will advise each other of any proposed appointments with any specialist medical practitioner or dental practitioner at least 48 hours prior to that appointment occurring and this Order authorises both parents to be able communicate with any medical or dental practitioner that the child attends upon and receive all information usually available to parents.
(11)That the parents shall not speak in a derogatory manner about the other parent or a member of the other parent’s household within the presence or hearing of the child and will remove the child from the presence or hearing of any third party seeking to do so.
(12)That after consultation, should the parents not be able to agree to a school for the child or make any other decisions in relation to the child’s health and welfare, then the parents shall arrange and participate in mediation to resolve any dispute.
(13)By consent, the parties shall each pay the sum of $6,572 to the Independent Children’s Lawyer for her costs, but their obligation to pay such costs shall be deferred for six months.
I certify that the preceding one hundred and eighty-five (185) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Associate:
Date: 31 July 2020
Key Legal Topics
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Family Law
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Civil Procedure
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Consent
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