Hacker and Hacker
[2010] FMCAfam 1298
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HACKER & HACKER | [2010] FMCAfam 1298 |
| FAMILY LAW – Children – Interim parenting orders – one child aged 18 months – whether father should spend time with child on an overnight basis – when overnight time should start – overseas travel – passport. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA, 111B |
| Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 Line & Line (1997) FLC 92-729 |
| Applicant: | MR HACKER |
| Respondent: | MS HACKER |
| File Number: | SYC 4603 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 25 October 2010 |
| Date of Last Submission: | 25 October 2010 |
| Delivered at: | Sydney |
| Delivered on: | 26 November 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Dura |
| Solicitors for the Applicant: | Clinch Long Letherbarrow |
| Counsel for the Respondent: | Mr Richards |
| Solicitors for the Respondent: | Moira Ryan Lawyers |
ORDERS UNTIL FURTHER ORDER:
Order 2 made by consent on 19 August 2010 is discharged.
Until the child [X] born [in] 2009 attains the age of two (2) years, he is to spend time with the Applicant Father as follows:
(a)From 9:00am until 5:00pm each alternate Saturday;
(b)From 9:00am until 5:00pm each Sunday of the other week in each fortnight; and
(c)From 3:00pm until 6:00pm each Tuesday and Thursday.
Upon the said child [X] attaining the age of two (2) years he is to spend time with the Applicant Father as follows:
(a)From 5:00pm on Friday to 5:00pm on Saturday each week; and
(b)From 5:00pm on Tuesday to 8:00am on Wednesday each week.
Notwithstanding the provisions of Order (2) above, the child [X] will spend Mother’s Day with the Respondent Mother each year and will spend Fathers’ Day with the Father each year.
Notwithstanding the provisions of Order (2) above, the child [X] will spend from 2:00pm to 6:00pm with the Father on Christmas Day
25 December 2010 and from 3:00pm to 6:00pm on the child’s birthday [date omitted] 2011.
That the Respondent Mother be and is permitted to travel outside the Commonwealth of Australia with the child [X] in July 2011 and September 2011 for the purpose of visiting Germany and the United Kingdom.
For the purposes of Order (6) above:
(a)
the Mother must return the child to Australia by 31 July and
30 September 2011 respectively;
(b)the Father must sign a passport application for the child [X] within fourteen (14) days of being requested to do so;
(c)the Father must sign a consent Authority within fourteen (14) days of being requested to do so in order to facilitate the child travelling overseas;
(d)the Mother must do all things to cause an itinerary to be provided to the Father within seven (7) days of an itinerary being prepared and in any event no later than seven (7) days prior to the proposed dates of departure from Australia, such itinerary must include particulars of flights and accommodation whilst the Mother and child are out of Australia; and
(e)the Mother must provide to the Father no later than seven (7) days prior to the proposed dates of departure from Australia details of telephone numbers upon which the Father can contact the child during his absence from Australia.
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 SYDNEY |
SYC 4603 of 2010
| MR HACKER |
Applicant
And
| MS HACKER |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for interim parenting orders in respect of the parties’ son [X], who was born [in] 2009. He is eighteen months old and lives with his mother. The Father wants to spend more time with [X], including having him for overnight stays. The Mother is taking a more cautious approach, and does not think that overnight time with the Father should start until the child is two years old, which will, of course, be on [date omitted] next year.
Matters that are agreed
There is no disagreement that [X] should continue to live with the Mother. There is no disagreement about equal shared parental responsibility.
Issues in dispute
The Father, as set out in his Amended Initiating Application filed on 14th October 2010, wants to vary the arrangements made in interim consent orders made on 19th August 2010 so as to provide that [X] spends overnight time with him on Tuesday nights and on alternate Saturdays until the child reaches the age of two. He then seeks to extend the time in a series of graduated stages when the child attains the ages of:
a)30 months;
b)42 months; and
c)4 years.
Although the Court has a heavy workload and available hearing dates seem to be disappearing into the future at an alarming rate, the Father’s lawyers are perhaps taking an unduly pessimistic view about when the matter can be expected to come on for final hearing. These are, after all, interim orders that the Father is seeking. The child will not attain the age of 4 years until [date omitted] 2013. It is likely that a final hearing will be available well before then, probably by September 2011 at the latest.
The Mother, in a Minute of Order filed in Court on the day of the hearing, seeks to vary the interim orders of 19th August so as to provide that between now and [X]’s second birthday he should spend time with his father:
a)From 10:00am to 5:00pm every alternate Saturday;
b)From 10:00am to 5.00pm on the Sunday of the off week; and
c)Three hours either by agreement or from 3:00pm to 6:00pm every Tuesday and Thursday.
The Mother proposes that once [X] attains the age of two years, then overnight time with the Father can start. Her proposal is:
a)From 5:00pm on Friday to 10:00am on Saturday each week; and
b)From 3:00pm to 6:00pm each Tuesday.
The Mother also suggests that the Father’s time with the child can be increased once he reaches the age of two years and six months. Her proposal is that he spends time with his father from 5:00pm on Friday to 5:00pm on Saturday in each week.
The Mother also proposes that the child spends from 3:00pm to 6:00pm with the Father on Christmas Day.
The Mother also wants to take the child overseas with her for two weeks in July 2011 and two weeks in September of that year. To this end, she wants the Father to consent to the child being issued with a passport.
Background
The parties were married [in] 2008 and separated on 16th June 2009. The Father was born [in] 1976, so he is 34 years of age. The Mother is just about to turn 28, as she was born [in] 1982.
There is one child of the marriage, [X], who was born [in] 2009. He lives with his mother and spends time with his father.
The Father commenced proceedings for parenting and financial orders on 22nd July 2010. On 19th August 2010 they entered into consent orders, curiously titled “By Consent and Pending Interim Hearing”, providing that the Father would spend time with the child:
a)From 9:00am to 2:00pm on alternate Saturdays;
b)From 9:00am to 2:00pm on the Sunday of the off weeks;
c)From 3:00pm to 6:00pm on Tuesdays; and
d)From 9:00am to 2:00pm on Fathers’ Day.
The parties attended a Child Dispute Conference on 20th September 2010. They reached agreement that [X] should live with the Mother and reached some agreement about the time [X] would spend with his father in the immediate future, they were unable to agree about whether parental responsibility should be shared or not.
The family consultant noted the terms of a tentative agreement between the parties which she noted that they did not have enough time to consider properly and sign off on. That agreement is recorded as:
· [X] will live with his mother
· For the next weeks and until [X] turns two years old [X] will spend time with his father:
(i) In week one, each Tuesday and Thursday from 3 pm to 6 pm and from 8 am until 2 pm on Saturday;
(ii) In week two, each Tuesday and Friday from 3 pm to 6 pm and from 8 am until 2 pm on Sunday.
· When [X] turns two years old he will continue to spend the same time with his father during the week but begin to spend every second weekend with his father from 9 am Saturday until 6 pm Sunday.
The parties have put somewhat different proposals to the Court.
The parties entered into interim consent orders on 25th October 2010, dealing with the property matters in dispute.
Submissions
Mr Dura of counsel, who appeared for the Applicant Father, told the Court that the Father had modified his proposal about time with the child at Christmas time. He now seeks that [X] should be with him from 1:00pm on Christmas day until 6:00pm on the 27th December.
Mr Dura submitted that the parties had effectively been following the arrangements made on 19th August. The dispute between the parties is really as to when overnight time should start.
Mr Dura asked the Court to look at the post-separation behaviour of the parties. The Mother’s affidavit shows that she did not trust the Father because of his behaviour over financial matters, not because of his inability to care for the child:
As a result of that conversation I learned that [Mr Hacker] had transferred at least $103,000 of the $118,892 that was in our joint account without my knowledge and consent. I understood then that I could not trust him or rely on his truthfulness. Until then I had been trying to reconcile with [Mr Hacker]. Especially after [Mr Hacker] had said to me on many occasions ‘trust me’, when he was moving money out of accounts and had hidden accounts, I became very afraid and reluctant to let [X] go anywhere with [Mr Hacker] because I couldn’t trust him to bring him back after what I had learned.[1]
[1] Affidavit of Ms Hacker 31.8.2010 at paragraph [18]
Mr Dura went on to submit that nowhere in the Mother’s affidavit material does there appear any significant criticism of the Father’s parenting skills. There is, he submitted, no reasonable basis to suspect that the Father would not return the child after spending time with him.
The parties have instituted a communication book to do with [X]’s needs and have been communicating successfully.
It was submitted that there was no evidence that the Mother saw the Father as a significant person in the child’s life. There was nothing to suggest that [X]’s interests would not be enhanced and maintained by the Father when the child is in his care.
Further, it was submitted that the order proposed by the Mother would actually decrease the Father’s time with [X].
The Father opposes the Mother’s proposals to travel overseas and submits that the travel issues can be dealt with at the final hearing.
Further, the Father is seeking that the parties have equal shared parental responsibility for the child. He also seeks that all the orders made buy consent on 19th August 2010 be discharged except for Order 1, which provides that the child should live with the Mother.
Counsel for the Mother, Mr Richards, submitted that the Mother sought that all of the consent orders made by consent on 19th August should continue, except for order 2, which provides for the Father to spend time with the child. He conceded that the rearrangement of the parties’ finances by the Father caused the Mother to distrust him, but said that the Court should ask itself what is best for the child.
In this case, he submitted, there was conflict but not violence. There is communication between the parties by means of the Communication Book, even though the book is not ideal.
The main issue is whether and when [X] should have overnight time with his father. He asked the Court to consider the child’s developmental age and submitted that very young children are particularly vulnerable. Early childhood is a period of very significant brain development. Routine and attachment are very important. There is a need to ensure that very young children have consistency of care. They should have one primary home base, particularly at night. The Court should take a cautious approach.
In this regard Mr Richards referred the Court to a paper by Alison Tucker, a clinical psychologist, presented to the 13th National Family Law Conference in April 2008. The paper is entitled “Shared Parenting – Public Perception vs Legislative Reality: Our role in making it work for children”.
In her paper, Ms Tucker considers parenting arrangements for young children and has some specific comments about the effect on children of ongoing exposure to parental conflict.
Ms Tucker refers specifically to very young children, whom she defines as infants and toddlers up to three years of age, and describes them as a particularly vulnerable group. These children have to communicate primarily through their behaviour, as they lack verbal skills.
Ms Tucker states:
The more developmentally cautious approach is to ensure that very young children have consistency of care. There is so much growth and development for children in the first few years that a predicable life, with minimal exposure to stress, is a potent investment in their long term mental health. With age, children can become more resilient. With resilience, more can be asked of children so that in the longer term they benefit from the influence of both parents in their lives. In the alternative, if with age children remain vulnerable then we are well informed and know to ask less of them.
What can be in conveyancing this cautious approach to parents is that it means that very young children have one primary home base, particularly at night. Many parents place a unique meaning on their children staying overnight. While this is understandable on the basis of their (the parents’) needs, night time is a particularly developmentally vulnerable time for many young children. It is common to hear how children can become inconsolable at these times. A risk is that we place meaning on this distress from an adult perspective. As adults, even at distraught times, we have the resources to soothe ourselves. Young children do not, and internally can undergo significant stress which if protracted can cause harm.[2]
[2] Alison Tucker “Shared Parenting – Public Perception vs Legislative Reality: Our role in making it work for children” 2008 page 166
As to the effect of parental conflict on a child, Ms Tucker stated:
A consistent research finding is that ongoing exposure to such conflict is a risk to children’s mental health. When this is considered from a stress perspective, it is easy to see why.[3]
[3] Ibid at 167
Thus, Mr Richards submitted that the Court should take a cautious approach and follow the mother’s more conservative approach to the Father spending time with the child.
Relevant considerations
In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration (Family Law Act 1975, s.60CA).
The Court determines what is in a child’s best interests by having regard to the primary considerations set out in s.60CC(2) and the additional considerations set out in s.60CC(3). The Court must also consider, where possible, the extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent (s.60CC(4)). Where the child’s parents have separated, the Court should have regard to events that have happened and circumstances that have existed since the separation occurred.
The Court must consider the presumption in s.61DA of the Act that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility and consider whether that presumption should apply in the particular circumstances of the case (see Goode & Goode[4]).
[4] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
If the Court does decides that it is in the child’s best interests for the parents to have equal shared parental responsibility, the Court must then look at the considerations in s.65DAA(1):
a)Whether the child spending equal time with each of the parents would be in the best interests of the child; and
b)Whether the child spending equal time with each of the parents is reasonably practicable.
Consideration
The primary considerations, as set out in s.60CC(2) of the Act, are:
a)The benefit to the child of having a meaningful relationship with each of his 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.
The child clearly has a meaningful relationship with his mother. The Father is of the view that the Mother does not accept that [X] should have a meaningful relationship with his father.
There does not appear to be any threat of either physical or psychological harm to the child from abuse, neglect or family violence.
[X] is too young to express any views.
The child clearly has a good relationship with his mother. There is no evidence that he does not have a good relationship with his father.
The Father submits that the Mother is, in effect, unwilling to facilitate a close and continuing relationship between himself and [X] because of the restrictions that she is placing on his spending time with the child.
The matters in s.60CC(3)(d) are apposite, being the likely effect of any changes in the child’s circumstances, including the likely effect on him of any separation from either of his parents, albeit a temporary one. The Mother submits that it is too early in this child’s life for him to spend overnight time away from her, whilst the Father submits that there is a need for the child to spend more time with him to build up his relationship with him.
There is no practical difficulty or any significant expense involved in [X]’s spending time with and communicating with either parent. They live in the suburbs of [omitted], which are both southern suburbs of Sydney and only a few kilometres apart.
There is no evidence that either party lacks the capacity to provide for [X]’s needs, including his emotional or intellectual needs.
[X] is only eighteen months old. He was born [in] 2009. His very young age makes him, as Alison Tucker said in her paper, developmentally vulnerable.
The Court must consider the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents. The Mother mistrusts the Father, but for reasons to do with financial matters, although she has stated that she became very afraid and reluctant to let [X] go anywhere with the Father because she could not trust him to bring the child back.[5]
[5] Affidavit of Ms Hacker 31.8.2010 at [18]
[X] is neither Aboriginal nor Torres Strait Islander (s.60CC(3)(h)).
There are no issues of family violence (s.60CC(3)(j), nor is there any family violence order in place (s.60CC(3)(k)).
Under s.60CC(3)(l) the Court must consider 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. However, these are interim proceedings, and there may well be a final hearing on parenting issues.
Another relevant circumstance is that the Mother wishes to travel out of Australia with the child in July and September 2011. The Mother has deposed that she has been invited to go to Germany for a friend’s wedding on 9th July 2011[6] and [X] has been asked to be a page boy.[7] The Mother has also been asked to be a bridesmaid at a cousin’s wedding in the United Kingdom in September 2011.[8]
[6] Affidavit of Ms Hacker 31.8.2010 at [64]
[7] Ibid at Annexure “L”
[8] Ibid at [64]
Whilst counsel for the Father has submitted that this matter need not be dealt with at an interim hearing, there is no guarantee that the Court will be able to allocate dates for a final hearing before July, so the matter must really be dealt with now.
In any application to take a child out of the jurisdiction temporarily, the Court must consider whether there is a risk that the child will not be returned to Australia.
The Full Court of the Family Court of Australia considered this question in Line & Line[9], which concerned an application to take child out of Australia to the United States of America for a holiday. The
Court must consider the degree of risk that the child will not be returned to Australia, which includes whether the country of travel is a signatory to the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (known as “The Hague Convention”) (see Family Law Act 1975, s.111B).
[9] (1997) FLC 92-729
Both Germany and the United Kingdom are signatories to the Convention.
There is no evidence that there is any appreciable risk that the Mother will not return the child to Australia after attending those weddings in Germany and the United Kingdom in July and September 2011. The Mother is an Australian citizen domiciled in Australia. Her parents till live in Australia.
Conclusions
The age of this child is to my mind a crucial factor. He is still only
18 months old and I consider that the Court should adopt what
Ms Alison Tucker has described as a “developmentally cautious” approach, giving the child a consistency of care at this stage of his life. This means that the Court would be reluctant to make an order that the child would spend overnight time away from his mother before he reaches the age of two, which will be in May. It is generally accepted that children are able to cope with, and enjoy, overnight contact time with the non-residential parent once they are two years old.
In the meantime, [X] should be able to spend more time with his father, even if not overnight at this stage, because it is important for him to build up an attachment to his father. There is no evidence that the Father is not a capable parent, and there is a benefit to the child in having a meaningful relationship with both of his parents.
There needs to be a consistent pattern of frequent time between the Father and the child, so that [X] will feel comfortable with his father and be ready to commence overnight time from his second birthday.
The Mother has proposed that the child spend time with the Father from 10:00am to 5:00pm on alternate Saturdays and Sundays, plus three hours each Tuesday and Thursday. Under the present orders, the child spends from 9:00am to 2:00pm with his father on alternate Saturdays and Sundays and three hours on Tuesdays. The Father wants overnight time on Tuesdays, overnight time on alternate Saturdays, and a full day on Sundays.
The parties’ proposals are a long way apart as far as time at Christmas is concerned.
In my view, if [X] is used to starting his time with his father at 9:00am on a weekend, as is the case under the present orders, there does not appear to be any reason why this starting time should not continue. No evidence has been led as to why 9:00am is unsuitable. It is also beneficial for him to spend time with his father during the week, and the Tuesdays and Thursdays would appear to be suitable for his needs at this time.
Once [X] reaches the age of two years, overnight time with the Father should commence. I am of the view that one night one a weekend and one night a week should suffice.
As for Christmas, the Mother proposes that the Father spends a total of three hours with [X] on Christmas Day, whilst the Father seeks time from 9:00am on Christmas Eve until 6:00pm on 27th December 2010[10]. As I am not convinced that overnight time with the child is warranted at this stage in the child’s life, I do not propose to make the order sought by the Father.
[10] Proposed Interim Order 3(l)
Christmas is not a particularly significant time for a child who is not yet two years of age, and the orders sought for Christmas would appear to be more in line with the parents’ wishes than the needs of the child. That said, the Mother’s proposal of three hours, from 3:00pm to 6:00pm, seems rather niggardly and I am of the view that a slightly longer period of time is warranted. By that stage, [X] will be spending blocks of up to eight hours with the Father, so he should be able to spend a longer period of time than three hours with his father on Christmas Day.
As previously indicated, there does not appear to be any reason why the Mother should not take [X] to Germany and the United Kingdom for weddings in July and September 2011, as the risk that she will not return the child to Australia is very low.
Mothers’ Day, Fathers’ Day and the child’s birthday are occasions that are probably more significant to the parents than the child at his age and stage of development, but is seems to be appropriate that [X] should spend Mothers’ Day with his mother and Fathers’ Day with his father. The child’s second birthday can be shared between the parents.
The parents need to consider that their grievances, whilst very real to them, are secondary to the best interests of the child.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 23 November 2011
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