Gustz and Denniston

[2017] FamCA 564

FAMILY COURT OF AUSTRALIA

GUSTZ & DENNISTON [2017] FamCA 564

FAMILY LAW – CHILDREN – Interim Parenting Orders

Parentage Act 2004 (ACT)

APPLICANT: Ms Gustz

RESPONDENT: Ms Denniston

FILE NUMBER: CAC 1096 of 2017

DATE DELIVERED: 1 August 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 31 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr G Howard

SOLICITOR FOR THE APPLICANT: Farrar Gesini Dunn

COUNSEL FOR THE RESPONDENT: Ms M Davis

SOLICITOR FOR THE RESPONDENT: Womens Legal Centre

Orders

IT IS ORDERED, UNTIL FURTHER ORDER, THAT

1. It is declared that Ms Gustz is a person concerned with the care, welfare and development of B, born … 2015, (the child).

2. B, born … 2015, shall, unless otherwise agreed in writing between the parents, spend time with the applicant as follows:

   (a)Each Tuesday from after childcare (or 5pm if the child is not at childcare) to before childcare on Wednesday (or 9am if the child is not at childcare) commencing on 8 August 2017;

   (b)Each second Friday from after childcare (or 5pm if the child is not at childcare) to 2pm on Saturday commencing Friday 4 August 2017; and

   (c)Such additional time as agreed between the parties in writing (including by text message).

3. Unless otherwise agreed in writing between the applicant and respondent, when the child changes from one party’s care to the others in accordance with these orders, except where handover occurs at childcare, the party with whom the child is about to commence spending time with is responsible for collecting the child from the home of the other party.

4. In the event that the respondent mother wishes to travel with the child away from the Canberra region, on up to 4 occasions each calendar year, she may give 14 days’ notice in writing to the applicant, at which point she may suspend three consecutive visits. 

5. In the event that there has been a suspension of visits in accordance with the preceding order, the Friday overnight time will commence on the Friday immediately following the suspension period and the Tuesday time will recommence on the Tuesday immediately following the suspension period.

6. The applicant is permitted to issue subpoenas to:

   (a)       C Counselling

   (b)       The D Swim

7. The respondent mother is permitted to issue subpoenas directed to E Hospital.

8. In this matter it is appropriate to deal with the issue of parentage and declaration of parentage in advance of other issues as a discrete matter.  

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gustz & Denniston has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1096 of 2017

Ms Gustz

Applicant

And

Ms Denniston

Respondent

REASONS FOR JUDGMENT

1. In this matter there is a dispute as to whether the applicant, like the respondent, is a parent of the child who is now aged 2.  The applicant ultimately seeks a declaration in accordance with the Parentage Act 2004 (ACT) that she is a parent of the child on the basis that she was in a relationship with the respondent at the time that the child was conceived, and that she consented to the procedure that led to the child’s conception. Ultimately, there are likely to be issues involving shared care of the child, parental responsibility and whether or not the child and the respondent may move to Brisbane.

2. At the interim hearing yesterday the scope of the dispute was limited due to the limited hearing time.  It was only possible to put into place temporary arrangements to deal with time that the child will spend with the applicant.  The matter may need subsequently to return for further interim consideration at a later date. 

3. Both the applicant and respondent say that the time that the applicant spends with the child should be twice-weekly although they disagree as to the terms of how it should occur.  The applicant says there should be two overnight occasions each week, while the respondent says there should be about four hours on a Saturday and two and a half hours midweek, but no overnight time.  Both agree that the time should be able to be suspended to allow the respondent to travel on school holidays although the applicant seeks make-up time in such an event.  The applicant also seeks facetime weekly.  Both of the parties accept that the applicant is a person concerned with the care, welfare and development of the child and yesterday declaration was made to that effect which will be incorporated into today’s orders.

4. The applicant asserts that she is an important person in the child’s life.  She says that she shared her home with him until March 2017, although the applicant and respondent were separated under one roof prior to this.  She further says that the child, if spending time with her, will be returning to his home which still has his bedroom.  She says there was regular and overnight time post separation although it appears this only lasted for about three weeks from May 2017 to June 2017 and according to the respondent it caused the child to be unsettled.  She says that she has had recent time with the child on his birthday.  Further, that she has been involved with the child since he was born and that she took time off immediately after he was born. 

5. The respondent says that the amount of time that the applicant has spent with the child has been reduced firstly because of the applicant’s travel.  The applicant denies that that is so, that is a contentious matter.  The respondent further says that she was away with the child on four occasions for between 10 and 25 days for trips to Queensland.  This may have reduced the applicant’s involvement with the child to some degree. 

6. The applicant says that she fed, dressed, bathed, changed and had other involvement in the child’s life and it is agreed by the respondent that she often bathed the child and did things with the child.  The applicant says that during the period of the relationship the respondent and the applicant and the child moved between the applicant’s and respondent’s two homes, this to some extent is agreed although disagreed as to the extent of it, that is how frequently they actually spent time together. 

7. The parties moved into the same home in March 2016.  By November 2016 there were significant difficulties in the relationship between the applicant respondent.  Annexure D of the respondent’s affidavit contains correspondence from the applicant where she said that she would not fight to be in the child’s life because she did not regard it to be in his best interest to do so, that is to cause him to be a battleground. 

8. By 11 May 2017 there was an agreement post separation between the parties that the child would spend two nights per week with the applicant.  On the weekend of 19 May 2017 the applicant cared for the child while the respondent moved home.  By the 12 June 2017 the respondent said to the applicant “I won’t be allowing you to see the child anymore”.  On 14 July 2017 the applicant spent an hour with the child on his birthday and says that he smiled, there were hugs and they played together.  

9. On either account of the relationship there are issues of conflict between the applicant and respondent that could constitute family violence.  These matters are presently unresolved.  There is not much immediate potential for cooperation and it is not possible at present to determine how or if each of the parties’ conduct during the relationship was coercive, controlling or fear inducing of the other. 

10. At present the question of whether the applicant is a parent is at large.  The question of the respondent being a parent is settled, that is in so far as the applicant is concerned the ultimate proceedings may or may not draw into play the principles contained at s 60B(1)(a) and (2)(a). 

11. Appropriately for the applicant it was not asserted on her behalf that I should follow the reasoning process concerning her as a parent with the ramifications that holds for parental responsibility and the pathway for decision-making in terms of considerations.  In any event the interim nature of these proceedings and the uncertainty of parental status would of caused me not to apply the presumption of equal shared parental responsibility in accordance with s 61DA(3), rather for the applicant I was urged to focus upon the s 60CC considerations in particular the nature of the relationship of the child with the applicant.  That is, she said that it was a parent like relationship that had involved day to day care that would involve the child returning to his previous home which still had toys for him in his bedroom in the context of overnight periods post separation. 

12. For the applicant I was asked to consider the case of Aldridge & Keaton [1] which has reminded me that there is no presumption in favour of a parent when it comes to determining best interests.  Parenthood is an important consideration but best interests turn on the merits and facts of each case.  That is Aldridge & Keaton is a reflection that the best interests of the child are paramount.  Its application here is that the applicant has had a strong involvement in the child’s life since he was born, having lived together for a significant period of that time and to some significant degree shared the care with the respondent mother of the child.  There are some conflicts as to the degree of this sharing of care.  The applicant is apparently a significant person in the child’s life at present.

    [1] [2009] FamCAFC 229

13. For the respondent I was asked to consider McCall & Clark[2] in terms of assessing a meaningful relationship and the benefits of meaningful relationship.  I was asked to transplant some of that reasoning and analysis onto the case of a non-parent.  McCall & Clark calls for a general focus on the prospect of effective orders to support meaningful relationship to the maximum extent consistent with the child’s best interest.  It requires some consideration of the existing relationships.  I was urged to consider that firstly, the applicant may not be found to be a parent.  Secondly, the applicant may not have a long-term role in the child’s life following a final hearing in particular is she is not found to be a parent.  Thirdly, it was put that it would be contra to the child’s interest to put him in a position of a future loss of relationship with the applicant should this be the case.  I was urged not to push the current relationship with the applicant too far. 

    [2] [2009] FamCAFC 92

14. In any application of McCall & Clark it is necessary to remember that it relates specifically to parents although in assessing the best interests I accept that a prospective analysis of the effect of the orders into the future is appropriate in considering the balance of the s 60CC factors.

15. Until recently the child lived with both the applicant and the respondent mother.  Many of the overnight times were shared between them.  There are a significant number with the respondent mother alone, post separation there is some with the applicant alone.  The respondent mother asserts distress although the aetiology is at large in these interim proceedings. Pre separation there was considerable involvement by the applicant in a wide variety of aspects of the child’s life.  In the context of general agreement between the parties as to frequency her relationship with the child should not be unduly truncated to presumptively marginalise her in the child’s life.  It is not in his best interests to unduly erode the relationship between the child and the applicant.  Even in a context where the future may not be shaped by the applicant being a parent, as opposed to a significant person or otherwise in the child’s life.  This calls for an order that includes some overnight time although not necessarily at the frequency sought.  While each of the parties agreed that there should be two occasions per week, or according to the applicant more than that if there was not overnight, for the respondent that was not to be in an overnight context.  Because the parties are highly polarised, that there are issues of family violence, it is appropriate to carve out some separation between the applicant and respondent to decrease the frequency of and decrease the need for interaction over the child.   A decrease in the interaction will hopefully decrease conflict and decrease the prospects of the child being the battleground that the applicant initially said she wished to avoid.

16. Orders will be made to achieve overnight time and to give this space.  In general terms they will provide for the child to spend time with the applicant mid-week each week on one occasion, along with each second Friday.  The parties may of course come to other agreements as to what the appropriate arrangements might be.  I am not prepared to make Order 8 as sought by the applicant as that would require considerable cooperation between the parties and likely be a breeding ground for conflict.  I am not satisfied that facetime is appropriate for this two-year-old.  Change over orders ought to be made in the general terms as sought by the applicant unless the parties again come to another agreement.  I make orders that in the event that the respondent mother wishes to travel away from Canberra she will be permitted to do so on up to four occasions per year on the basis that she gives 14 days’ notice.  She will be able to suspend three visits.  That allows an almost two-week block.  I will provide for a mechanism to resume the time with the applicant as soon as possible following the suspension period.  Permission will be given for the issuing of subpoenas. 

17. I have determined that it is appropriate in this case to deal with the declaration of parentage issue as a preliminary issue particularly as counsel estimated that it could be dealt with as a one day discrete matter and I will shortly give further directions to prepare the matter for trial.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 1 August 2017.

Associate: 

Date: