Granger and Granger
[2013] FMCAfam 312
•5 April 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GRANGER & GRANGER | [2013] FMCAfam 312 |
| FAMILY LAW – Parenting – discrete issue as to changeovers to facilitate the father’s time – consideration of best interests of young child – significant travel times – father seeks mid point changeover – child in primary care of mother – disparity in finances – mother’s application acceded to. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA and Part VII |
| Goode and Goode [2006] FamCA 1346 MRR v. GRR [2010] HCA 4 Collu & Rinaldo [2010] FamCAFC 53 Mazorski v Albright[2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 |
| Applicant: | MR GRANGER |
| Respondent: | MS GRANGER |
| File Number: | PAC 4554 of 2011 |
| Judgment of: | Foster FM |
| Hearing date: | 3 April 2013 |
| Date of Last Submission: | 3 April 2013 |
| Delivered at: | Wollongong |
| Delivered on: | 5 April 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Alexander |
| Solicitors for the Applicant: | Verekers Lawyers |
| Solicitors for the Respondent: | Rebecca Bailey & Associates |
ORDERS
That for the purposes of the child’s time with the father as provided for in orders made on the 21 March 2013 that changeovers be affected at the McDonald’s Family Restaurant at [B] or as otherwise agreed between the parties in writing with such writing to include SMS or e-mail communication.
IT IS NOTED that publication of this judgment under the pseudonym Granger & Granger is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT WOLLONGONG |
PAC 4554 of 2011
| MR GRANGER |
Applicant
And
| MS GRANGER |
Respondent
REASONS FOR JUDGMENT
Proceedings
The present application is a discrete parenting application as to the issue of changeovers facilitating the time that the subject child [X] born [in] 2010 shall spend with the father.
The mother and father resolved all issues as to parenting save for the present discrete issue by reason of final parenting orders made on 21 March 2013.
Those final orders in summary provided:
a)That the mother and father have equal shared parental responsibility for the child,
b)That the child to live with the mother,
c)That the child spend time with the father as follows:
i)From 4 April 2013 in alternate weeks from 9 AM Saturday to 4 PM Sunday in the presence of one or both of the paternal grandparents or other paternal family member, with the father not to be present during changeover, other than when changeover is at the contact Centre and at other times as agreed;
ii)
From 4 April 2014 in alternate weeks from 4 PM Friday to
4 PM Sunday upon the same conditions and otherwise as agreed;
iii)From 4 April 2015 if changeovers are at or north of [K] from 5 PM Friday until 5 PM Sunday and give changeovers are south of [K] from 4 PM Friday until 4 PM Sunday;
iv)Otherwise as agreed between the parties.
d)Otherwise the orders provided comprehensively for special and significant occasions for the child to spend with each of the parents, for school holiday time, electronic contact between the child and the father, communication between the parents as to matters touching upon the child’s welfare, restraints on the parents from physically disciplining the child, a mutual non-denigration order, provision for international travel, the mother be restrained from relocating the child’s residence more than 25 km from the current address in [U] and various other orders not significant for the present purpose.
Otherwise the final orders provided for the facilitation of changeovers from 4 April 2013 at the Catholic Care Contact Centre in [omitted] and, if that centre is unavailable, then the McDonald’s Family Restaurant at [B].
However the parties were unable to agree as to arrangements for changeovers after 4 April 2014 and that issue is the issue for determination by the Court.
The Mother’s Proposal
The mother’s proposal is that changeovers from 4 April 2014 take place at the McDonald’s Family Restaurant at [B] in effect continuing the arrangements to be implemented for the next 12 months.
The Father’s Proposal
The father proposes that changeovers take place at the McDonald’s Family Restaurant at [A] upon condition that:
a)The mother deliver the child to the father or the father’s agent at that location at the commencement of the child’s time with the father as provided for or as otherwise agreed;
b)The father or the father’s agent return the child to the mother at that location at the conclusion of the child’s time with the father or as otherwise agreed.
In support of the orders sought by him, the father relied upon his affidavits filed on 12 March 2013 and 28 March 2013 together with his financial statement filed on 12 March 2013.
The mother, in support of her contention, relied upon her affidavit filed on 8 March 2013 and her financial statement filed on 8 March 2013.
Background
The mother is presently aged 34 years of age and the father is presently aged 34 years of age.
The father has a history of depression which, at present, is controlled by medication and annual visits to his medical specialist. The mother asserts that the father has some obsessional personality traits and lack of emotional control. These aspects are referred to in the Family Report.
The parties commenced cohabitation in June 2003 and were married [in] 2009. The parties separated on 4 March 2011.
The subject child, [X], is the only child of the marriage.
Subsequent to the parties separation in March 2011, the mother relocated with the child to the far south coast of New South Wales to [U], being an area where she has support of family, particularly her mother.
Subsequent to separation, the father remained residing in the matrimonial home at [omitted] until it was sold in late 2012. The father now resides with his parents at [C] in Sydney.
It appears common ground that the distance between the mother’s home at [U] and the father’s residence at [C] is just in excess of 250 km one way and, subject to traffic, is about a 3 ½ hour drive.
The mother says that to facilitate changeovers at [B], as sought by her, she would be required to travel with the child about 70 km, which would take about one hour. Should she be required to effect changeovers at [A], she says this would require her to travel about 122 km or for about one hour and 40 minutes.
Importantly the mother asserts that for her to travel either to [B] or [A] would require her to mostly travel up on country roads, whereas a substantial portion of the travel that would be required to be undertaken by the father would be on a freeway or multilane highway. This circumstance was not in dispute during submissions.
As to her financial circumstances, the mother receives the child support payments from the father in the sum of $262 a week and government benefits that total about $442 per week. The mother is able to work on a casual basis as a [omitted] earning about $60 per week. The mother presently owns a 13-year-old motor vehicle of insignificant value and says that she is unable to afford to upgrade that motor vehicle.
The mother says that she spends about $50 per week in petrol and would find it difficult to meet any additional petrol expenses to meet the father’s requirement as to changeovers.
Subsequent to sale of the former matrimonial home the mother purchased her present home in [U] for the sum of $270,000 with a mortgage of $200,000 in respect of which are repayments are $1175 per month.
The mother asserts that the father is in full-time employment earning about $115,000 per annum as part of which he receives the benefit of a motor vehicle and motor vehicle expenses as part of his salary package.
The father seeks a changeover arrangement that is approximately midway between his residence and that of the mother, suggesting that each of them take a break during their respective drives to provide the child with an opportunity to stretch his legs and thus make the journey less onerous.
The father complains that should he be required to undertake a more significant portion of the travel, this will impact upon his time with the child and impact on his work arrangements, in that he would need to leave work early when he was to collect the child on work days.
The father says that he is required to reimburse his employer $211 per month for the private use of his employer’s motor vehicle. He suggests that he pay to the mother an amount of $20 for each changeover weekend until January 2016 to defray the additional costs of her petrol.
The father says that after separation changeover was affected at [K], but that that arrangement ended in June 2011.
The father presently earns an annual salary of about $83,000 per annum. In addition, as referred to above, he has provided to him a motor vehicle by his employer, in respect of which he pays to the employer the modest sum of $211 per month. The father’s child support is assessed on the basis of his annual salary and a sum equivalent to his grossed up fringe benefit relating to his motor vehicle and any other benefits he may receive from his employer.
However the reality is that the mother is the primary carer for the child and her ability to return to the workforce in any significant capacity is hindered by her ongoing obligation to care for the child who is just three years of age.
The Law
The relevant principles in relation to parenting and interim proceedings are well settled Goode and Goode [2006] FamCA 1346. The Full Court in Goode and Goode provided a “framework” as to how applications for parenting orders are to be determined. The High Court, in MRR v. GRR [2010] HCA 4, affirmed the legislative pathway.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
(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).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (sub-s.(2)) and additional
(sub-s.(3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. If the presumption in s.61DA is to apply, and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s.65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
In these proceedings, the parties have, by consent, provided for equal shared parental responsibility and for orders as to the child’s time with each of them.
In that circumstance, the orders to be made by the Court falls to be determined by reason of a consideration of the best interest considerations set out in section 60CC.
Best Interests
As the Full Court preferred in Collu & Rinaldo [2010] FamCAFC 53 as the Court turns to look at the best interests considerations set out in s.60CC it should firstly consider the additional considerations.
The Additional Considerations
S.60CC(3):
a)any views expressed by the child and any factors (such as the child's 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 of tender years and this is not a relevant consideration.
b)the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
The child has a primary attachment to the mother, who is the child’s primary carer. However the child has a significant and substantial relationship with the father that the parties have been able to maintain over the period since separation. The family reporter observes that “the child presents as a much loved and will cared for child. He appears able to confidently and securely explore his environment and seek comfort from his parents which is indicative that he has been able to form secure and trusting attachment relationships with them both.”
c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(i)to communicate with the child;
Both parents have been appropriately engaged in relation to the considerations provided for in this factor. It is of no assistance to the Court in the present determination.
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;
The mother is the primary provider in terms of the obligation to maintain the child. She provides the child’s long-term accommodation and an overwhelming proportion of the child’s day to day needs from what is, in comparison to the father’s income, a modest and government supplemented income. The father pays child support as assessed but makes no other provision to assist the mother in the provision of accommodation or long-term costs for the child.
This disparity in the parent’s obligations favours the mother’s proposals.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
This is not a factor of great significance. The parties are simply at odds in relation to changeovers such that would facilitate the child’s time with the father. Either party’s proposal has no impact as contemplated by this consideration.
(e) the practical difficulty and expense of a child spending time with and communicating with a 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;
This factor is of little significance. The parties themselves have resolved the substantial issues in relation to residents and the father’s time with the child. The discrete issue has an impact in terms of the expense to either party of additional travel but in implementing same there is no issue as to practical difficulty.
(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);
to provide for the needs of the child, including emotional and intellectual needs;
This issue is partially relevant having regard to the mother’s reservations referred to in the family report, as to the father’s depression and other aspects of his behaviour. However, the parties have resolved the question of the father’s time with the child and, inherent in that resolution, is an acknowledgement by the mother that she is satisfied that the father has an appropriate capacity in this regard.
(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;
As referred to above, the child is of tender years and the child’s relationships in circumstances of the parent separation are still developing. The parents have agreed to appropriate and child focused orders having regard to the age of the child. This consideration has no relevance to the discrete issue for determination.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) 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
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
In the context of this discrete issue, the Court has concerns that the father is focusing more on his and, indirectly, his family’s needs rather than the question of appropriate arrangements for his child.
His affidavit evidence reveals, to some extent, an obsession with ensuring equality in terms of travel time and distance. He does not acknowledge that his travel for a significant distance will be on much easier roads and in much better circumstances than the travel required of the mother. To some extent this demonstrates a lack of reflective capacity in the father as to the needs of the child and his responsibilities as a parent not only to the child but to the mother.
(j) any family violence involving the child or a member of the child's family;
This is not a relevant consideration in the context of this application.
(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:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
This is not a relevant consideration in the context of this application.
(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;
The present application is as to the resolution of one discrete issue, the parties having resolved all other parenting issues and its determination is most likely to avoid further proceedings.
(m) any other fact or circumstance that the court thinks is relevant.
There is no other fact or circumstance that the Court thinks is relevant
The Primary Considerations: s.60CC(2)
The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).
S.60CC(2)(a) – “meaningful” relationship
In Mazorski v Albright[2007] FamCA 520; Brown J considered ordinary definitions of the term “meaningful” and observed:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92, the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
This consideration is not of significant relevance having regard to the matters referred to above, however, the Court is of the view that notwithstanding that a portion of the fathers time with the child will be involved in travel, such travel will facilitate the father and his extended family interacting with the child in the much more intimate circumstances of a motor vehicle. To some extent this has the possibility of enhancing the father’s relationship with the child.
S.60CC(2)(b) – need to protect
This is not a relevant consideration in the context of the discrete issue for determination.
Discussion
The Court has had regard to the matters set out above and in particular the best interest considerations provided for in section 60CC of the Act.
The Court is conscious of the age of the child, the financial disparity in terms of disposable income available to each of the parties, the nature of the travel and the roads on which that travel is to be undertaken and the distances and time between each of the parties’ respective contentions.
The Court is comfortably satisfied that it is in the best interests of the child that that there be an order that changeovers be affected at the McDonald’s Family Restaurant at [B] or as otherwise agreed between the parties in writing with such writing to include SMS or e-mail communication.
The Court will make orders accordingly.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Foster FM
Date: 4 April 2013
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