Hacker and Hacker - [2011] FMCAfam 491

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HACKER & HACKER

[2011] FMCAfam 491

FAMILY LAW – Parenting.

Family Law Act 1975, ss.60CC, 65DAA

Applicant:

MS HACKER

Respondent:

MR HACKER

File Number:

BRC 10167 of 2010

Judgment of:

Lapthorn FM

Hearing date:

13 April 2011

Date of Last Submission:

13 April 2011

Delivered at:

Brisbane

Delivered on:

13 April 2011

REPRESENTATION

Counsel for the Applicant:

N/A

Applicant in person:

No appearance

Counsel for the Respondent:

N/A

Respondent in person:

Mr Hacker

ORDERS

That the mother and the father have equal shared parental responsibility of the child [X] born [in] 1998.
That the child live with the father.
That the child spend time with the mother as agreed between the father and the mother.
That each party have responsibility to make the day to day decisions concerning the child when the child is in their respective care.

IT IS NOTED that publication of this judgment under the pseudonym Hacker & Hacker is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 10167 of 2010

MS HACKER

Applicant

And

MR HACKER

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Before the Court today is an application for parenting orders in relation to a 12 year old child, [X]. [X]’s mother, Ms Hacker, brought an application initially for recovery order and then parenting orders, and the respondent father, Mr Hacker, has responded. Currently, [X] is living with her father. She has been primarily cared for by her mother most of her life. However, recently when the mother moved to the Ipswich area from Brisbane, the child decided to stay with the father.
The mother has been wanting the child to attend a different school to that which the child wishes to attend, and the child was adamant she wished to go to [W] School. I am satisfied the father has played a significant role in the care of the child throughout the child’s life, and he has been there to ensure that the child has a home. In mid December 2010 the mother dropped the child at the father’s bus depot whilst he was out on the road, and the father then took the child back to his house and the child has primarily lived with him since.
In support of her application, the mother filed a number of affidavits which I have had regard to. The mother has not attended Court today, although I am satisfied she is aware of today’s proceedings. She was in Court on 4 March when I made orders adjourning the matter to today. The father has filed his response and an affidavit on 11 March to which I have also had regard. I have also had regard to the report prepared by Family Consultant Ms A dated 10 February 2011.
In determining parenting orders, the Court must follow the provisions of Part VII of the Family Law Act and make any decision based on the best interests of the child as the paramount consideration. The objects of Part VII are to ensure that those best interests are met by both parents having a meaningful involvement in their children’s lives, that the children are protected from physical or psychological harm, that they receive adequate and proper parenting and that the parents fulfil their duties and meet their parental responsibilities.
In determining what is in a child’s best interests, the Court must consider a number of factors set out in s.60CC, and even though this matter has proceeded by way of undefended hearing, I am required to consider those factors. Also, when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility, although this presumption may not apply or may be rebutted in cases of child abuse and/or family violence or if any other evidence establishes that it is not in the best interests of the child for it to apply.
In this particular case, I am satisfied the presumption does apply and the order is sought by the respondent. Having applied the presumption and also being satisfied it is in the best interests of this child for that order to be made, I am required to apply a number of provisions set out in s.65DAA, which provide for a consideration of the child spending equal time with the parents. In this particular case, that would not be reasonably practicable, because the mother lives in the Ipswich area, and the father lives in the Brisbane area. The child is also of an age and has expressed clear wishes. I am of the view that it would not be in the best interests of this child for the child to live in both households in an equal time arrangement, nor would it be reasonably practicable.
I am then required to consider whether it would be in the child’s best interests or reasonably practicable for the child to spend substantial and significant time with the parents. Substantial and significant time includes time during the week as well as weekends and school holidays. Because of the distance between the households, mid-week time may not be practicable, and therefore I do not propose to make a substantial and significant time order. However, when I consider the factors set out in s.60CC, I am satisfied it is appropriate to order a flexible time arrangement.
Turning, then, to the provisions of s.60CC(2), the first being the benefit of the child of having a meaningful relationship with both parents. I am satisfied the child has a close and loving relationship with the father in particular and also the mother and that she continues to see her mother. The dispute between daughter and mother has arisen as a result of the mother’s move to the Ipswich area and her choice of school for the child. The mother wished the child to attend [school omitted], initially. The child wanted to go to [W], and then with the mother’s move, this further exacerbated the dispute between the parties.
I am satisfied there are no issues in relation to the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. I take into account the evidence, such as it is, that the child wishes to remain living with the father and attend [W] School, although if the mother lived closer to that school she would live with the mother. The mother has not attended today, and although I have no firm evidence of this, the father tells the Court it is because the child has told the mother what she wants to do. I am satisfied the father is willing to promote the child’s relationship with her mother, as he considers it important for his daughter to spend time with her mother. He tells the Court the child is seeing the mother regularly, is contacting the mother and will be having a camping trip over Easter.
I am satisfied the child has settled into the father’s home and that it is appropriate to formalise that arrangement. I am satisfied the parties do not live so far apart that the child cannot move readily between the homes, but it would be too much for mid-week time if the child is to travel between the northern suburbs of Brisbane to Newtown in Ipswich, where the mother is living.
For those reasons I make the orders at the commencement of this judgment.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Lapthorn FM

Date: