Grigg and Dea
[2012] FMCAfam 641
•9 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GRIGG & DEA | [2012] FMCAfam 641 |
| FAMILY LAW – Parenting – significant geographical distance between Father and child – time child is to spend with Father – best interests considerations. |
| Family Law Act 1975, ss.60B, 60CC(2), 60CC(3), 60CC(4A), 65DAA & 117(1) |
| Collu & Rinaldo [2010] FamCAFC 53 Mazorski v Albright (2007) 37 Fam LR 518 McCall & Clark (2009) 41 Fam LR 483 Moose & Moose (2008) FLC ¶93-375 Sigley v Evor (2011) 44 Fam LR 439 SPS & PLS (2008) FLC ¶93-363 |
| Applicant: | MR GRIGG |
| Respondent: | MS DEA |
| File Number: | MLM 8956 of 2005 |
| Judgment of: | Neville FM |
| Hearing date: | By written submissions |
| Date of Last Submission: | 23 March 2012 |
| Delivered at: | Canberra |
| Delivered on: | 9 July 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Brzostowski SC |
| Solicitors for the Applicant: | Taylor Whelan & Whelan |
| Counsel for the Respondent: | Mr T Crispin |
| Solicitors for the Respondent: | S & T Lawyers |
ORDERS
The Mother and Father have equal shared parental responsibility for the child [X] born [in] 2002.
The child [X] live with the Mother.
The Father spend time and communicate with [X] as follows:
(a)One weekend per school term in Bendigo, and
(b)One weekend per school term in Canberra and the Father shall notify the Mother in writing at least 21 days prior to his intention to exercise this time for contact.
(c)During each term school holidays for 10 nights by agreement in writing not less than 21 days prior to the commencement date of the school holidays or failing agreement to commence at 12 noon on the first Saturday of the holidays,
(d)Good Friday at 11:00am to Easter Monday at 11:00am in odd years,
(e)In each alternate Christmas School holidays commencing 2012 / 2013 from noon on the first Saturday of the said holidays to conclude on the following third Saturday at noon,
(f)In each alternate Christmas school holidays commencing 2013 / 2014 from noon on the third Saturday to conclude at noon on the Saturday immediately preceeding the commencement at the school year,
(g)Father’s Day weekend in accordance with 4(a) below.
Changeover arrangements are to occur as follows:
(a)[X] shall be placed on a plane no later than 5:15pm to travel to Tullamarine and no later than 6:15pm to travel to Canberra.
(b)In the holidays [X] shall be placed on a plane leaving Canberra no later than 11:00am to travel to Tullamarine and no later than 1:00pm to travel to Canberra.
(c)In relation to 3(b) the Father will collect [X] from her school on Friday and return [X] to McDonalds at [W] no later than 4:00pm or as otherwise agreed in writing.
[X] will have her own phone and will be able to contact the parent with whom she is not spending time as she wishes.
Each parent will provide Skype or other visual contact for [X] and each parent will permit [X] to have time on every 2nd day on occasions when [X] spends more than three nights from the other parent for a minimum of 30 minutes; that is Tuesday, Thursday and Saturday when [X] is not with the Father. In the event that Skype or alternative is not available, telephone time will be substituted.
The Mother and Father shall:
(a)Keep each other advised at all times of their current residential address, telephone numbers and email address.
(b)Advise each other immediately in the event [X] suffers any serious illness, injury or requires immediate medical treatment and / or hospitalization.
The Mother authorises the school at which [X] attends from time to time to:
(a)Provide the Father at his expense, copies of all school Reports, notices and photographs, together with the name and the address of the school [X] attends.
(b)Communicate with the Father, either by telephone in writing or personal attendance in respect of [X]’s progress at her school and any special event appropriate for a parent to attend. The provisions of a sealed copy of these Orders to [X]’s school is the Mother’s authorization.
The Father and his partner Ms A, and their children may attend any school function and / or sporting function or extracurricular function in which [X] is involved.
Each party may nominate any person to collect [X] at the completion of his or her time with [X] and this order is authority of both parents to the airline to permit the respective parent’s nominee to collect [X].
In the absence of genuine emergency, no further proceedings are to be instituted without the prior leave of the Court. Such leave can only be sought after there has been a genuine attempt to mediate any future dispute.
Each party bear their own costs.
IT IS NOTED that publication of this judgment under the pseudonym Grigg & Dea is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
MLM 8956 of 2005
| MR GRIGG |
Applicant
And
| MS DEA |
Respondent
REASONS FOR JUDGMENT
Introduction
These parenting proceedings concern a young girl, [X], who is now aged 10. It is clear from the file number that her parents have been litigating in some shape or form for half of her life.
Because the Father has, in my view, quite properly, abandoned his attempts to have [X] live with him, the issues now to be determined are relatively narrow in scope, being the frequency with which [X] spends time with her Father and his new family in Victoria. [X] has resided with her Mother for some time in Canberra.
Primarily for reasons of cost, the parties have agreed, through their respective legal representatives, that the outstanding parenting matter(s) be dealt with by way of written submissions only. The submissions on behalf of both parties were received in late March. As well, the Court has the benefit of brief written submissions from the Independent Children’s Lawyer. Necessarily, the veracity and credibility of matters set out in the materials put before the Court are not able to be tested in the usual way in view of the procedural course taken.
At the outset, it is important that the Family Report from Ms M, dated 16th November 2011, be admitted into evidence. On the principles articulated by Warnick J in SPS & PLS, that Report will be so admitted.[1]
[1] SPS & PLS (2008) FLC ¶93-363.
Background
By way of very brief general background, I note the following, which is helpfully summarised in the Family Report of Ms M.
The parties married in 2001. [X] was born in 2002. The parties separated in 2005. Following separation, [X] lived in a shared care arrangement. Ms Dea then moved to the town of [O] in New South Wales, which is approximately a ten hour drive from the Father’s residence in Bendigo. For a little time, the shared care arrangement continued, but which resulted in [X] attending two different pre-schools.
Following orders made in November 2007, [X] lived with her Mother and spent every third weekend (and half school holidays) with her Father.
In early 2008, Ms Dea moved to the ACT, and the arrangements just noted continued.
After [X] made allegations of witnessing domestic violence in her Mother’s residence, the Father did not return [X] after the school holidays. [X] was ultimately returned to her Mother pursuant to orders made in September 2011.
Both of the parties have re-partnered and each new family has produced off-spring (all boys) so that [X] now has five brothers (two on her Father’s side, and three on her Mother’s).
Apart from the obvious geographical impediments to [X] spending more time with her Father (and his family) in Bendigo, the main, albeit now somewhat preliminary issue, concerned an allegation of violence in her Mother’s residence. This allegation surfaced in July 2011. In the light of concessions made by the Father, subject to what is said later in these reasons, I do not need to traverse that allegation. It is sufficient to record the following as the only issue to determine, which is taken from the Father’s submissions, at para.2.3: “It is important … to structure orders that [X] spend time with her Father as much as possible consistent with her best interests.” I agree with this presentation of the only issue to determine.
The remainder of these reasons proceed as follows: (a) outline of orders sought; (b) evidence from Family Report; (c) summary of submissions; (d) legal principle; (e) consideration & determination.
Orders Sought
Orders sought by the Applicant Father
1. That all extant parenting orders be discharged.
2.That the parties share equal responsibility for the long term welfare and development of the child [X] ([X]) born [in] 2002.
3.That the parties have sole responsibility for the day to day care, welfare and development of [X] while she is in their respective care pursuant to these Orders.
4.That the Wife and [X] reside in the Australian Capital Territory.
5. That [X] spend time with the Husband during the calendar year of 2012 in accordance with the attached Schedule.
6. That in 2012 and each year thereafter the Husband submit a calendar for the forthcoming year with the following minimum times:
i.During January – a period of 15 consecutive nights to be by agreement, failing agreement, for 15 consecutive nights to end no later than 3 days prior to [X] attending her first day of school;
ii.During each term school holidays for 10 nights by agreement in writing not less than 30 days prior to the commencement date of the school holidays or failing agreement to commence at 11.00 am on the first Saturday of the holidays;
iii.Easter holidays from Holy Thursday at 5.15pm to Easter Monday at 2.00pm 2012 and each alternate year thereafter;
iv.During first term for three weekends including the Labour Day weekend to finish on Monday night, the weekends to be by agreement in writing at the commencement of each term, failing agreement to be second weekend after the child recommences school attendance, the Labour Day long weekend and the fourth weekends after the Labour Day weekend;
v.In the second and third school term for two weekends by written agreement prior to each school term, failing agreement to be the third and sixth weekend in the school term with the weekend of Fathers Day to be one of the weekends;
vi.In the fourth term for three weekends by written agreement, failing agreement prior to each school term, to be the second, fifth and seventh weekend;
vii.In the first week of the long holidays from 11.00am on the first Saturday in 2012 for a period of 7 nights, and each alternate even numbered year thereafter. In 2013 from the second Saturday at 12.00noon for a period of 7 nights and each odd numbered year thereafter.
7. TELEPHONE AND SKYPE TIME
i.[X] will have her own phone and be able to contact the parent with whom she is not spending time;
ii.Each parent will provide Skype or other visual computer contact for [X] and each parent will permit [X] to have time on every second day on occasions when [X] spends more than three nights from the other parent for a minimum of 30 minutes between 6.30pm – 7.00 pm ie Tuesday, Thursday & Saturday when [X] is not with the Husband. In the event that Skype or alternative is not available telephone time will be substituted. The parent’s partners, [X]’s siblings and significant persons will be permitted to be involved in the telephone and Skype time with [X];
iii.In addition to the set telephone/Skype time each parent with whom [X] is not residing that the parent may have telephone and Skype times on significant dates, including birthdays of parents, parent’s partners, siblings birthday plus Christmas Day, [X]’s birthday on times as detailed 7.ii.
8. CHANGEOVER
i.Travel to Husband – [X] to be placed on a plane leaving Canberra no later than 5.15pm to travel to Tullamarine;
ii.Travel to Wife – [X] to be placed on a plane leaving Tullamarine no later than 6.15pm to travel to Canberra;
TERM HOLIDAYS (INCLUDING LONG SUMMER HOLIDAYS)
iii.Travel to Father – [X] to be placed on a plane leaving Canberra no later than 11.00am to travel to Tullamarine;
iv.Travel to Mother – [X] to be placed on a plane leaving Tullamarine no later than 2.00pm to travel to Canberra;
CONTACT AT CANBERRA
v.The Husband may exercise time with [X] in substitution of the times set out by giving the Wife written notice four weekends prior to the date of the commencement. In the event that the Husband exercises time in Canberra, he will collect [X] from her school on Friday at completion and return [X] to McDonalds [W] or the McDonalds nearest the Wife’s address in Canberra on the completion no later than 4.00pm.
9. RESTRAINT
The Wife ensure that:
(a)Mr D is restrained from driving the vehicle in which [X] is transported for the purpose of changeover, or save that [X] may be driven by [X] may be driven by Mr D but not for a distance greater than 100 kilometres from [X]’s principle place of residence;
(b)[X] be referred to by her surname of GRIGG only.
The Husband and Wife:
(a)Keep each other advised at all times of their current residential address and telephone numbers;
(b)advise each other immediately in the event that [X] suffers any serious illness, injury or requires immediate medical treatment and/or hospitalisation;
The Wife authorises the school at which [X] attends from time to time to:
(a)Provide the Husband, at the expense of the Husband, copies of all school reports, school notices and school photographs in relation to [X], together with the name of the school [X] attends;
(b)communicate with the Husband, either by telephone, in writing or personal attendance in respect of [X]’s progress at her school and any special event appropriate for a parent to attend. The provision of sealed copy of these Orders to [X]’s school is the Wife’s authorisation. The authorisation of the Wife cannot be revoked without a further Order of the Court.
10.The Wife, her servants and agents be hereby restrained by injunction from permitting [X] to be, or to remain, in the presence of Mr C unless supervised by the Wife or the maternal grandfather.
11.The Husband, the Wife and their servants and agents be, and are hereby restrained by injunction, from abusing, insulting, belittling rebuking or otherwise denigrating each other or any member of his or her household in the presence or hearing of [X] or from permitting any other person to do so.
12.Pursuant to s. 65DA sub-section 2 and s. 62B of the Family Law Act 1975 the particulars of the obligations that these Orders create and the particulars of the consequences that my follow if a person contravenes these Orders as set out in Annexure “A” and these particulars are included in these Orders.
13.The Husband and his partner Ms A, and their children may attend any school function and or sporting function in which [X] is involved.
14.The Wife may nominate any person to collect [X] at the completion of time with the Husband, and this Order is authority of both parents to the airline to permit the Wife’s nominee to collect [X].
15.The Husband may nominate any person to collect [X] at the commencement of time with the Husband, and this Order is authority of both parents to the airline to permit the Husband’s nominee to collect [X].
16.In the event that [X] is to commence and or complete her time in Bendigo, the changeover will take place at McDonalds [K]. The time will be the same as the time set for [X] to be placed on the plane.
17.That any agreed changes between the parties are to be in writing.
18.Certify for advocacy.
19.That all applications in relation to parenting orders be otherwise dismissed.
20.That the Order to the appointment of the Independent Children’s Lawyer be discharged.
21.NOTATION
In the event the Wife moves to a place that is more than 71/2 hours road travel from Bendigo, or 1.15 hours flying time to Tullamarine, then the Wife is to give the Husband prior notice and such an intention shall constitute a change in circumstances.
22.2012 SCHEDULE
17th February – 19th February
9th March – 12th March
5th April – 9th April
19th April – 29th April
18th May – 20th May8th June – 11th June
29th June – 1st July
12th July – 22nd July
17th August – 19th August
31st August – 2nd September
29th September – 10th October
9th November – 11th November
30th November – 2nd December22nd December – 29th December
Orders Sought by the Respondent Mother
1. [X] (the child) lives with the Mother;
2. The child shall spend time with the Father as follows:
2.1 One weekend per school term in Bendigo;
2.2 One weekend per school term in Canberra;
2.3 The Father shall notify in writing to the Mother the arrangement for contact between him and the child for the whole calendar year before the start of the first term of school in the ACT;
2.4 In relation to clause 2.1 the child shall be placed on a flight to Melbourne by the Mother leaving Canberra Friday 5:15pm. The Father at the end of his weekend shall place the child on a flight from Melbourne to Canberra by Sunday 1:15pm;
2.5 Both parents acknowledge that flights may be delayed or changed beyond control of the parents;
2.6 In relation to clause 2.2 the Father shall pick up the child at the McDonald’s in [W] by 3:30pm and drop off the child at the end of his weekend by 3:00pm Sunday and drop shall occur at McDonald’s in [W];
2.7 That changeover takes place by flights for the child. That child is placed to arrive at Melbourne within 30 minutes of the stated time as set out in clause 2.8 and that the child is placed on a plane to be return to Canberra within 30 minutes of the stated time as set in clause 2.8;
2.8 The second half of all term holidays commencing 12pm on the second Saturday of each school term holiday and to conclude at 12pm on the following Saturday before school term commences, except for the June/July school holidays then the commencement of the Father’s period shall be 12pm Saturday on week earlier;
2.9 Easter holidays from Easter Saturday to Easter Monday with the stated time as set in clause 2.8;
2.10 Father’s Day weekend with the stated time as set in clause 2.4
3. The Father shall contact the child via Skype one time every week, at a pre-arranged time. The child to spontaneously ring her Father once every week, or when something noteworthy happens;
4. While the child spends time with the Father, the Mother can contact the child by phone or Skype on Tuesdays and Thursdays, and on special days such as Christmas, Mother’s Day, the child’s and Mother’s birthday, if the child is staying with the Father. And that both parents undertake not to record their phone or Skype communications with the child;
5. The child to continue to attend a counsellor appointment to discuss strategies of how to become more assertive about expressing her needs;
6. As the child shall school in the ACT region all matters concerning education is to be solely managed by the Mother;
7. The Mother will undertake to keep the Father informed of all important educational matters within a reasonable time;
8. When the child has any form of communication with the parent she is not residing with, then the parent whom the child is spending time with shall facilitate contact and will not interfere with that communication process;
9. In each alternate Christmas school holidays commencing 2012/2013:
9.1 The child shall live with the Father for the first Saturday of Christmas holidays to conclude on the following third Saturday within the terms set out in clause 2.8 of these orders;
9.2 The child shall live with the Mother from the third Saturday to the commencement of school terms in the terms set out in clause 2.8 of these orders;
10. In each alternate Christmas school holidays commencing 2013/2014:
10.1 The child shall live with the Mother for the first Saturday of Christmas holidays to conclude on the following third Saturday within the terms set out in clause 2.8 of these orders;
10.2 The child shall live with the Father from the third Saturday to the commencement of school terms in the terms set out in clause 2.8 of these orders;
11. The Mother and Father:
11.1 Keep each other advised at all times of their current residential address and telephone numbers;
11.2 Advise each other immediately in the event that the child suffers any serious illness, injury or requires immediate medical treatment and/or hospitalisation;
12. Any other terms that is agreed in writing between the parties;
13. That both parents provide the other party of relevant flight details 2 weeks prior to the commencement of contact with the Father;
14. That if the child has an event, function or sport commitment that may be during the Father’s contact period that if she wishes she be permitted to attend, then the child to go to the Father’s for contact thereafter;
15. That neither party be allowed or permitted to record or tap any phone calls, face to face contact of Skype calls had with the child; and
16. That the Respondent Father is to pay for the legal costs for the Applicant Mother.
The Mother filed submissions on 23 March 2012 in support of the position that the current arrangements should be altered to reflect the recommendations of the Family Consultant.
Orders Sought by the Independent Children’s Lawyer
1. That the mother and father have equal shared parental responsibility for the child [X] born [in] 2002.
2. That the child “[X]” live with the mother.
3. That the father spend time and communicate with [X] as follows:
3.1 One weekend per school term in Bendigo, and
3.2 One weekend per school term in Canberra and the father shall notify the mother in writing at least 21 days prior to his intention to exercise this time for contact.
3.3 During each term school holidays for 10 nights by agreement in writing not less than 21 days prior to the commencement date of the school holidays or failing agreement to commence at 12 noon on the first Saturday of the holidays,
3.4 Good Friday at 11:00am to Easter Monday at 11:00am in odd years,
3.5 In each alternate Christmas School holidays commencing 2012 / 2013 from noon on the first Saturday of the said holidays to conclude on the following third Saturday at noon,
3.6 In each alternate Christmas school holidays commencing 2013 / 2014 from noon on the third Saturday to conclude at noon on the Saturday immediately preceeding the commencement at the school year,
3.7 Father’s Day weekend in accordance with 4.1 below.
4. CHANGEOVER
4.1 [X] shall be placed on a plane no later than 5:15pm to travel to Tullamarine and no later than 6:15pm to travel to Canberra,
4.2 In the holidays [X] shall be placed on a plane leaving Canberra no later than 11:00am to travel to Tullamarine and no later than 1:00pm to travel to Canberra,
4.3 In relation to 3.2 the father will collect [X] from her school on Friday and return [X] to McDonalds at [W] no later than 4:00pm or as otherwise agreed in writing.
5. [X] will have her own phone and will be able to contact the parent with whom she is not spending time.
6. Each parent will provide Skype or other visual contact for [X] and each parent will permit [X] to have time on every 2nd day on occasions when [X] spends more than three nights from the other parent for a minimum of 30 minutes, that is Tuesday, Thursday and Saturday when [X] is not with the father. In the event that Skype or alternative is not available, telephone time will be substituted.
7. The mother and father shall:
a) Keep each other advised at all times of their current residential address, telephone numbers and email address,
b) Advise each other immediately in the event [X] suffers any serious illness, injury or requires immediate medical treatment and / or hospitalization.
8. The mother authorizes the school at which [X] attends from time to time to:
a) Provide the father at his expense, copies of all school Reports, notices and photographs, together with the name and the address of the School [X] attends,
b) Communicate with the father, either by telephone in writing or personal attendance in respect of [X]’s progress at her school and any special event appropriate for a parent to attend. The provisions of a sealed copy of these Orders to [X]’s school is the mother’s authorization.
9. The father and his partner Ms A, and their children may attend any school function and / or sporting function or extracurricular function in which [X] is involved.
10. Each party may nominate any person to collect [X] at the completion of his or her time with [X] and this order is authority of both parents to the airline to permit the respective parent’s nominee to collect [X].
Evidence from Family Report
The most immediately relevant parts of the Family Report are those sections that concern the Family Consultant’s assessment of [X], and, of course, her assessment and conclusion. In particular, I note the following from the Report.
First, in relation to her discussions with [X], and, for example, with her teacher, the Family Consultant said:[2]
“[X], in her interview, was adamant that she did not wish to see her Father and that she was frightened of him. She felt that he would be angry if she did not say that she wanted to live with him and that her Mother had treated her badly. [X]’s ability to tell a story which is consistent with her allegation was remarkable and her ability to fend off tricky questions is exemplary. The interview with [X] on this occasion, was similar to that which was conducted with her by the police constable in Bendigo, although a little shorter. One would need to say that [X] endeavours to please both parents by trying to re-enforce their need to have more time with her.
[X] indicated that she loved both her parents and that she knows that they love her. She spoke favourably about each of her parent’s and reflected on the positive relationship that she shared with each of them.
[X]’s most telling statements and credible information comes from her teacher Mr D. Much of this information was shared with him during casual conversation outside of the belief that it was going to be heard by either parent. Firstly, Mr D described [X] as a delightful student who is socially well connected to her peers. She is well behaved, occasionally outspoken, participates well in class discussion and appears to be a balanced and settled young girl. He has observed, however that since her return from Bendigo she has been a little reserved. She has spoken to him about the conflict between her parents and of her desire to stay living with her Mother. She has said to him that her Father told her, on her last visit with him, and prior to her discussion with the consultant, that she should display strong affection towards him in the presence of the family consultant. She has spoken to her teacher about feeling pressured by her Father to side with him.
Mr D indicated that Ms Dea regularly speaks with him about [X]’s progress at school. He feels that Ms Dea demonstrates a strong relationship with her daughter as she is well aware of how [X] is progressing at school without him having to inform her. He concludes that Ms Dea must discuss with [X] what is happening in class in the playground.
[2] See para. 15 – 18 of the Report.
Secondly, the Family Report records the following recommendations:
“It is evident that both Mr Grigg and Ms Dea love their daughter and that each are able to parent her. [X] shares a good relationship with each parent, although she appears to be more comfortable in her Mother’s care.
[X] is seeking to please both parents by indicating, at various times, that she wishes to live with each of them. She makes allegations that she believes fit with the view that, that parent hols about the other. The parents are unwilling to trust the other and to discuss and resolve their daughter’s statements. The situation has now escalated to [X] making statements to police, statements which are not necessarily accurate.
[X] has to date managed to juggle the competing desires of her parents, however she will not be able to continue to do so. She is now in the realm of having to confront the allegations that she is making. The discomfort of the confrontation is leading her to say that she does not wish to see the parent about whom she has made the allegations. The risk that her parents are taking and in particularly her Father, is that in adolescence she may choose to remove herself from ongoing conflict, by choosing not to continue her relationship with one parent.
At this time [X]’s interest may be best served if she: [3]
·Predominately lived with her Mother.
·Spend one weekend per school term with her Father in Bendigo and another weekend with him in Canberra. [X] needs to be able to not only share her Father’s world; he needs to also be included in hers. She is coming to an age where friends and extracurricular activities are becoming more important and connections are able to be maintained using other forms.
·Spend half of the school holidays with her Father, plus an additional week, possibly two weeks in the June/July school holidays.
·Mr Grigg to contact [X] via Skype one time every week, at a pre-arranged time. [X] to spontaneously ring her Father once every week possibly when something note worthy has happened.
·[X] to continue attending a counsellor to discuss strategies of how to become more assertive about expressing her needs.”
[3] See para. 19 – 22 of the Report.
Submissions
I note the following, in full, from the Father’s submissions:
“In summary they achieve the following of the more important features –
(a)equal shared parental responsibility with sole day to day responsibility when [X] is with either parent;
(b)residence in Canberra with the Mother;
(c)scheduled and foreseeable contact pattern;
(d)equal sharing of long vacation but with a break on 1+2 week pattern;
(e)10 days for the shorter term holidays;
(f)3 weekends in terms 1 and 4; 2 weekends in terms 2 and 3, with the option to spend time in Canberra;
(g)travel obligations;
(h)telephone/ Skype time, which must be enshrined to stop manipulations; and
(i)restraints and sundry obligations.
2.6It is vital that the orders be detailed, and that contact definitions be enshrined subject to variation by agreement. Any suggestion by the Mother that contact take place subject to [X]’s alleged wishes, is a means by which the Mother will have an opportunity to manipulate whether contact takes place or not. This will become a recipe for further litigation and must therefore be avoided. The Father has instead made a long-term timetable, and his approach should be preferred.
2.7There is a need to ground the Mother’s option to move [X]’s locality of residence. She has a history of past movements, e.g. by leaving Bendigo for [O] when the week-about arrangement was in place, terminated the reasonable practicality of that pattern as [X] has to start travelling 6 hours each weekend. From [O], she then moved to the ACT.
Practical Considerations
3.1The suggestion by the Consultant that for one of the periods of contact during term time take place in Canberra, is fine in theory, but not made against any appreciation of costs, drain on leave opportunities, or awareness of time taken to travel. The times that [X] spends with the Father in Bendigo normally involve only one person travelling, namely [X].
3.2There are no housing or any accommodation costs incurred during such visits.
3.3Contact in Bendigo is practical in the sense that air travel between Canberra and Melbourne Airport, is possible, if not ideally times, but it has worked.
3.4Road travel between Melbourne Airport and Bendigo is also something that has worked and can be described as affordable.
3.5The Father does not need to take time off work in Bendigo.
3.6If [X] is to spend time with the Father in Canberra during term times, the Father will have to take time off work in order to drive. Flying for his family to visit [X] is simply out of the question. The distance by road between Bendigo and Canberra according to the website, is 647km and takes about 6 hours 47 mins. The Father says it takes him 7.5 hours non-stop, and 9 hours if with children. The return trip therefore is a little under 1,300km without travel within Canberra during contact. In terms of time, that is somewhere between 14 – 18 hours of travel on highways. In practical terms it means he will have travel on Fridays and Mondays. That means he will have to take two days off work. He refers to 2 nights of accommodation, but that is with respect, optimistic and experience with fatigue may dictate a difference outcome.
3.7Additional considerations are the cost of accommodation in Canberra. Assuming he is not expected to push himself excessively and risk accidents through exhaustion, he will have to spend Friday nights, Saturday nights and Sunday nights on such contact weekends, in motel accommodation or some other form of tourist exhaustion, he will have to spend Friday nights, Saturday nights and Sunday nights on such contact weekends, in motel accommodation or some other form of tourist accommodation. Even if he does not make it all the way to Canberra on the Friday nights, he will have to seek accommodation en route. The same may sometimes apply on the way home if he should choose to start his drive on the Sunday evening.
3.8Accommodation costs. This will be a new cost. In addition, his partner and their children are part of the equation. A single room is not suitable nor would it be proper on the Saturday nights when [X] is with them. Therefore he will have to pay for an apartment, inter-connecting rooms or some other form of multi-room accommodation.
3.9Then there is the cost of paying for food on the highway and in Canberra. Eating out for the number of persons involved, is going to be expensive by any stretch of imagination.
3.10The loss of time at work is an additional costs. Therefore one sees the form of his proposals for the long vacation in particular. If one is a worker, and if one does not have the opportunity to take off unlimited time for travel and parenting, then there has to be some limitation struck during vacation times. Apart from [X] possibly finding 3 weeks a long time, taking a 3-week block of time off work is not a guaranteed option. [4]
[4] Submissions of the Applicant Father filed 21 March 2012, 2.5 – 3.10.
The following is taken from the Mother’s submissions:
The Father's Relationship with [X]
The family consultant's report describes [X]'s pattern of making allegations against whichever parent she is not currently living with. This tragic state of affairs is the product of an extensive litigation history and will not be easy to resolve. The conflict between the parents has led to [X]'s conflicted feelings. The Mother has demonstrated insight into this problem, and the strain on [X] that it reflects. The Father has demonstrated no insight, and indeed maintains that everything [X] tells him should be accepted at face value (Ms M report paragraph 6).
The pressure put on [X] by her Father is damaging her otherwise healthy relationship with him. Ms M is concerned that should things remain unchanged, that relationship may deteriorate irreparably (Ms M report paragraph 21). Such an outcome would be disastrous.
[X]'s difficulties are not wholly distinct from her living arrangements. She has one world in Canberra, another in Bendigo. In Canberra, she presents her Father as an ogre, in Bendigo a protector. In Bendigo her Mother's household is a said to be a place of danger, in Canberra one of refuge. Part of tackling this problem is to bring the two worlds together. [X] needs an opportunity to bring her Father into her engagements with her friends. She needs him to become a part of her world in Canberra.
The Father has given evidence to the effect that he would find a one weekend trip to Canberra each school term difficult. The Mother's proposed orders invite the Father to try to overcome these difficulties for the sake of [X]'s welfare. [X]'s best interests must be regarded as the paramount consideration. However, if he is unable to do so, that does not mean that the existing arrangements are in [X]'s best interests.
The Father's Travel
The Father has put forward that he cannot afford to spend time with [X] in Canberra. He argues that driving the distance from Bendigo to Canberra would require him to take time off from work. He further argues that he would be subjected to the unaffordable expense of providing accommodation for himself and his family.
Without wishing to seem unduly harsh, the Father has misunderstood the importance of his presence in Canberra. Under the Mother's proposed orders, [X] would still benefit from contact with the Father's family when in Bendigo. There is no reason why the Father cannot come up to Canberra on his own to discharge his obligations to [X]. This would greatly diminish the cost burden as it would allow the Father to fly at comparable expense to the existing arrangements. The only additional burden would lie in finding accommodation for himself overnight. This additional cost pales into insignificance when compared with the benefit to [X] of having her Father in Canberra.
The Mother's Residence
There is no reason to restrain the Mother from changing her residential address. The Mother has resided in Canberra since 2008 and her arrangements are stable. She has no plans to move.
Moreover, the parties live more than seven hours drive away from each other. [X] has travelled to and from her Father's residence almost exclusively by air. Accordingly, even if the Mother moved to Sydney, Brisbane, Adelaide, or any of a number of other cities serviced by airports, the Father's contact would not be prejudiced.
Contact by Telephone/Skype
The Mother has not and does not attempt to manipulate [X]'s telephone contact with the Father. As [X] continues to mature, it can be expected she will more confidently assert her own views on the contact regime she wants with whichever parent she is not currently staying with.
The Need to Prevent Further Litigation
This is the third occasion on which the Father has sought orders from federal or territory courts for [X] to live with him. The constant recourse to litigation has stoked the fires of conflict between the parties and squandered precious resources which could have been put to [X]'s benefit.
One of the additional considerations the court should consider is whether it would be preferable to make the orders least likely to lead to the institution of further proceedings.[5] It is clear that the existing Orders have failed in this respect.
It is hoped that if the Father can participate in [X]'s life in Canberra, and see how well she thrives here, then he will be less inclined to commence further litigation. Should the existing arrangements remain in place, it seems sadly inevitable that the Father will continue to re-litigate this matter.[6]
[5] S.60CC(3)(l) Family Law Act1975.
[6] Submissions of the Respondent Mother filed 23 March 2012, para 5 - 16.
I turn to the legal principles relevant to parenting matters. In doing so, I note the significant dearth of reference to the legislative pathway in the submissions provided to the Court. I understand the need for economy in the submissions in this case, but such considerations do not absolve the Court from relevant consideration of the enshrined pathway.
Legal Principle
I note the following matters.
In Mazorski v Albright, in the light of, and by reference to, relevant Full Court authority, Brown J conveniently set out an overview of principle in relation to Part VII of the Act. Respectfully and gratefully I adopt her Honour’s comments. Brown J said:[7]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
[7] Mazorski v Albright (2007) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” Beginning at [20], through to [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[8]
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[8] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks, as did the Full Court in Sigley v Evor (2011) 44 Fam LR 439 at [131] – [136].
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationship with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[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 [sic] one. Quantitive [sic] 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.
This summary of principle must suffice for current purposes.
Consideration & Determination
By sequential reference to the additional considerations in s.60CC(3), and recognising the objects and principles in s.60B and the primary considerations in s.60CC(2) noted by Brown J in Mazorski v Albright, I note the following in the light of the materials and evidence before the Court.
[X]’s views are relevant, as recorded by the Family Consultant. However, they must be tempered also by what is noted about her desire to please both parents. Doubtless too her views are shaped by her understandable desire to spend time with both parts of her family, and not least her siblings. I note that there is no question of her love for her Father and her Mother.
I accept the comments and observations of the Family Consultant as they inform the matters to be addressed pursuant to s.60CC(3)(b) – (d).
I have already noted the obvious difficulties in relation to the geographical distance between the two households.
There is no issue in relation to the capacity of either parent to provide for the relevant needs of [X].
I share the concerns expressed in the Mother’s submissions about the propensity to resort to litigation in matters that arise between these parents. I also understand why this occurred on this last occasion. However, as a matter of relevance under s.60CC(3)(i), (l), (m), and (4A), in my view, some additional protective order (protective of both parents but especially of [X]), needs to be in place. Thus, in the absence of genuine emergency, no further proceedings are to be instituted without the prior leave of the Court. Further, such leave can only be sought after there has been a genuine attempt to mediate any future dispute.
Having regard to all the matters raised and the Mother’s order sought in relation to costs, in my view, the provisions of s.117(1) shall apply, in which case each party should bear their own costs.
Given the geographical distance, the provisions of s.65DAA have no application.
In all the circumstances, and subject to the matters noted above, the orders proposed by the Independent Children’s Lawyer are, in my view, in [X]’s best interests. The Court so orders.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 9 July 2012
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