Heat and Barton

[2008] FamCA 1014

FAMILY COURT OF AUSTRALIA

HEAT & BARTON [2008] FamCA 1014

FAMILY LAW – CHILD – rebuttal of presumption of equal shared parental responsibility – best interests of the child – child health considerations – air travel

Family Law Act 1975 (Cth) ss 60CC, 61DA(4), 60CA

APPLICANT: Mr Heat

RESPONDENT: Ms Barton

INDEPENDENT CHILDREN’S LAWYER: Legal Aid ACT

FILE NUMBER: CAF 291 of 2005

DATE DELIVERED: 29 October 2008

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: The Honourable Justice Rose

HEARING DATE: 29 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:	C Grogan
SOLICITOR FOR THE APPLICANT:	Elrington Boardman Allport

FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	M Burgess
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Aid ACT

Orders

1. That the mother have sole parental responsibility for the child … born … April 2000 (“the child”) in relation to the issue of her education subject to the mother informing and consulting the father appropriately prior to any decision being made by her in relation to her education of the child.

2. That in all other respects so far as the remaining major long-term issues are concerned, the parties have equal shared parental responsibility.

3. That the father may communicate with and spend periods of time with the child as follows:

   (a)during school term for no more than alternate weekends in H provided that he gives the mother no less than seven (7) days prior notice;

   (b)during school holidays as follows:

   (i)for one week in each of the school holiday periods that follow each school term with the exception of the last school term;

   (ii)for a block period of two (2) weeks in the school holiday period following the last school term of the year,

   (c)generally, the father may communicate with the child by telephone, web cam or any other electronic means on a reasonable basis by arrangement between the parties;

   (d)the father may communicate with and spend alternate periods or other time with the child as agreed upon between the parties.

4. That for the purpose of facilitating change-over of the child between the mother and the father for school holiday periods the mother will travel with the child by motor vehicle to meet the father at Y whereupon the father shall take the child into his care and upon the conclusion of the relevant school holiday period the father will travel with the child by motor vehicle to meet the mother at Y for the purpose of the child being returned to her care.

5. That the mother shall forthwith authorise the Principal of all schools attended by the child to furnish the father with copies of the child’s school reports, letters and any other school material in relation to the child’s academic progress, school and extra-curricular activities upon his request for such material and if necessary at his expense.

6. That in the event of the child suffering a serious illness or injury in the care of either of the parties then he or she will promptly inform the other party of the details of such illness or injury and the name, address and telephone number of the relevant medical practitioner or hospital.

7. That all documents produced on subpoena may be returned to the person who produced the same.

8. That the proceedings be removed from the Active Pending Cases List.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER:  CAF291 of 2005

MR HEAT

Applicant

And

MS BARTON

Respondent

REASONS FOR JUDGMENT

Introduction

1. In these proceedings each of the parties is seeking parenting orders in respect of their child, a daughter born in April 2000 (“the child”).

Historical background

1. The parties cohabited for a period of approximately 10 years which commenced during 1994 and concluded upon their separation in 2003.

2. During that period of cohabitation the parties married in November 1998.

3. The marriage was dissolved by divorce on 11 November 2007.

4. The applicant, who is the father, is 43 years of age having been born in July 1965.  The father manager and lives in Sydney with his partner Ms K.

5. The father and his partner have been cohabiting since March 2005 and have two children being J who is one year old and M who is approximately 4 weeks of age.

6. The father, his partner and their children live in Sydney which has been their place of abode since early 2008.  Previously, the father lived in or about H.

7. The mother lives in H with the child.  The mother’s occupation is that of nurse.

8. The child has lived with the mother continuously since the parties separated.  At the time of separation the child was approximately three years of age.

9. The periods and places of cohabitation between periods of time that the child has spent with the father subsequent to separation have been as follows.

   (a)For the period from separation to about August 2004 at H for periods representing approximately two hours of supervised time with the child over about four fortnights.

   (b)For the period October to November 2004 being three visits during the course of the child having music lessons.

10. The parties consented to interim parenting orders that were made on 26 September 2005.  Those orders provided for unsupervised periods of time that the father might spend with the child on a graduated basis.  The essential elements of the graduated regime of periods of time were for:  each weekend from 5.00pm Friday to 6.00pm Saturday for four weekends following a previous period of during each Sunday over eight consecutive weeks;  then from 5.00pm Friday to 10.00am Sunday over four weekends;  then fortnightly from 5.00pm Friday until 6.00pm Sunday.  There were additional periods of time agreed upon for Christmas the child’s birthday as well as for periods of four nights in the June school holidays and four days in the September school holidays.  Restrictions were also placed in relation to the father not smoking in the child’s presence.

11. On 8 November 2006 further interim parenting orders were made by consent.  Those orders provided for periods of time that the father might spend with the child on 12 November 2006 from 4.00pm to 6.00pm;  then from 12 midday to 6.00pm on 26 November 2006, 10 December 2006 and 24 December 2006.  Orders were also made for restraint on the father’s pet dog and for the type of care and food to be provided to the child during the periods when she was in the father’s care.

12. During 2007 alternate weekends were spent by the child in the father’s care.

13. From early 2008, consequent upon the father moving to live in Sydney there have been much less periods of time that the child has spent with him.  They have included a week in each of the school holidays following Terms 1 and 2;  and recently a period of about 10 days during the October school holidays.

14. There is no issue in these proceedings that an order be made that the child live with the mother.

15. The issues that require determination in terms of the best interests of the child are as follows:

    (a)Whether the presumption of equal shared parental responsibility has been rebutted on the ground of the best interests of the child.  In that regard, the mother seeks an order that she have sole parental responsibility for the child.

    (b)Whether or not it is in the child’s best interests for there to be weekends spent by her with the father in Sydney as opposed to one or more weekends during school term in H.

    (c)The period of time, either in one block or split, that the child spends with the father over the December/January school holidays following the last school term of the year.

    (d)Finally, there is an issue as to whether or not an order should be made for the child to be able to travel by air on a return basis between H and Sydney during school term to spend periods of time with the father.

Relevant legal principles pursuant to the family law act 1975 as amended (“the act”)

1. Section 60CA of the Family Law Act 1975 as amended (“the Act”) makes it clear that in deciding whether or not to make a parenting order in relation to a child:

   “A Court must regard the best interests of the child as the paramount consideration.”

2. Consequently, the interests of parents whilst obviously important are not at the focus point so far as the legislation is concerned for the purpose of making orders.

3. The Objects underlying the provisions in relation to the best interests of the child make it clear that a child has a right to have the benefit of regular care from each of the parents to assist the child in her development.  Those rights are expanded upon in s.60B of the Act.  However, those rights are subject to an important exception, that is, what is in the child’s best interests.

4. So far as the child’s best interests are concerned, I am required to take into account what is referred to as primary considerations as well as additional considerations in s.60CC.  The two primary considerations are:  the benefit to a child of a meaningful relationship with each of her parents;  and the protection of a child from family violence or abuse.  Fortunately, the latter is irrelevant in these proceedings.

5. In addition, there are other considerations referred to in s.60CC(3) and I will refer to them where relevant during the course of giving this judgment.

Relevant matters for determination

1. The case for the father is that it will further the meaningful relationship between the child and him for her benefit if she is able to spend periods of time with him, preferably at least twice per school term in Sydney, so that the child may have the benefit of the family environment created by the father and his partner which includes their two children.  The child has spent periods of time with the father in Sydney most recently during the October school holidays.

2. Unfortunately, the tyranny of distance between H and Sydney is such that it is implicitly recognised by the parties that provided there are other reasonable options such as:

   (a)possible travel by plane,

   (b)the tiring effects of a six to seven hour travel by motor vehicle, even if it results in a change-over between parents at Y,

   (c)air travel being either avoided or minimised, particularly during school term.

3. The father’s case is that there is a benefit for the child travelling by plane.

4. There is no issue between the parties that travel by motor vehicle with change-over at Y should take place so far as the school holiday periods are concerned.  However, the issue arises in relation to weekends during school term because travel by motor vehicle between H and Sydney to enable her to spend periods of time with the father in Sydney would be unacceptably tiring for her.  That aspect of travel is not a matter of controversy between the parties.

5. The mother’s approach is that the child suffers or is likely to suffer from stress and anxiety travelling by plane, regardless of whether she is accompanied by either of the parents and even more likely to occur should she be under the general supervision of a flight attendant.

6. Exhibit 4 represents a copy of the facilities offered by Rex Regional Express Airline in relation to unaccompanied minors travelling between Sydney and H.  I was assured by counsel for the father, and I accept, that Exhibit 4 represents current information in relation to such travel.  It is clear from the sections under the heading “unaccompanied minors” that there is a maximum of five unaccompanied minors per flight on a certain type of aircraft and a maximum of two on another type of aircraft.  Consequently, it is not a sure prediction when a booking is made whether a child is able to be accepted as an unaccompanied minor.  Assuming that the child is able to be accepted by the airline as an unaccompanied minor at the time of travel, the relevant portion of the page in Exhibit 4 states as follows:

   “unaccompanied minors should be able to travel without constant direct supervision particularly on flights operated by Metro 23 aircraft that do not carry a flight attendant.  If in doubt contact the airline.”

7. Assuming for the moment that the child is able to travel and is accepted to travel on the particular aircraft that has a permitted maximum of five unaccompanied minors, then according to Exhibit 4 the child would still need to be in a position to travel without “constant direct supervision”.

8. Evidence was given by the mother of a flight she took recently with the child on that same airline.  There was one flight attendant who had to attend to approximately 18 or 20 passengers.  There is no evidence before me to suggest that the child was likely to be booked on a flight where a flight attendant would be able to provide “constant direct supervision”.  On the evidence before me, the issue is whether the child requires constant supervision.

9. The child in these proceedings has been progressing very well according to the expert evidence of the family consultant, Ms L.  The family consultant gave a combination of oral evidence and evidence contained in the Family Report dated 1 May 2008 which became Exhibit 3.

10. The family consultant’s evidence was of particular relevance given that the child suffers from autism and attention deficit hyperactivity disorder (ADHD).  That diagnosis appears to be accepted now by the father, although in part of his evidence, the father was not convinced of the extent of the impact of the diagnosis on the child.  This in contrast to the mother.  The diagnosis was provided by a specialist, Professor T in his Report dated 6 November 2003 being annexure “B” to the Affidavit of the mother filed 17 September 2008.  Professor T’s diagnosis was that the child “presents with a pervasive development disorder of the autistic disorder type”.

11. The most recent review of the child’s health as well as other features of her presentation and personality can be found in Exhibit 3.  The family consultant stated in Exhibit 3:

    “She presents as a delightful, attractive and well-cared for child who is eager to please those around her.  Although [the child] impresses as confident and in many ways as [sic] typical for her age group, she displays subtle features related to autism and the restlessness and distractibility associated with Attention Deficity/Hyperactivity Disorder (ADHD).

    …

    Autism is a complex condition on its own even with high functioning individuals, without the further complications associated with ADHD.  It is a life-long developmental disability which affects verbal as well as non-verbal communication in addition to social comprehension and social interaction.”

12. The family consultant proceeded to observe in Exhibit 3 that there is “difficulty with changes to social and physical environments and sensitivity to sensory stimuli”.  The family consultant further stated in Exhibit 3:

    “Individuals with this level of cognitive functioning, however often use their intellect to mask the features of the disorder.  This point might help to explain the parents’ divergent views of [the child’s] condition.

    …

    [The child] displayed anxiety when she spoke of the prospect of flying to Sydney in the future to spend time with her father.  She stressed ‘I don’t want to fly by myself’.  Given [the child’s] condition, her anxiety is understandable.

    …

    There is little doubt that [the child] enjoys spending time with her father.”[1]

    [1] Exhibit 3, pp 6-7

13. During the course of her oral evidence, these particular matters were touched upon by the family consultant.  The family consultant’s views were not challenged as being incorrect.  Indeed, I found that the family consultant’s oral evidence was given in a professional and thoughtful way consistent with Exhibit 3.

14. In addition, I received oral evidence from the mother in relation to air travel which she undertook with the child during this year.  The mother’s evidence was that the child displayed behavioural problems which impacted upon the comfort of other passengers and more importantly the constant parental attention that the mother had to provide to the child.  In addition, the child behaved in a particularly anxious manner at the airport which appeared to be a combination of anxiety due to lack of understanding of delays in flight times and perhaps from noise and the number of passengers milling around the airport terminal.

15. Those features were consistent with the evidence given by the family consultant in relation to the child given her age and condition.

16. The evidence of the father is that due to financial constraints he cannot afford to travel to and from H with the child during school term other than on one occasion during each school term.  His evidence and particularly the submissions made on his behalf by counsel are that it is in the child’s best interests to travel by plane between Sydney and H given that each parent should accompany the child to the point of embarkation of the flight and that will provide some level of comfort and reassurance for her.  In addition, it is implicit in the evidence of the father and submissions by counsel that the flight attendant would provide a supervisory role in relation to the child.

17. The mother opposes that approach because of the emphasis on the anxiety and stress that the child is susceptible to in such travel and implicitly in a situation where she will not be directly cared for, or even if receiving care, that such care will be provided by a stranger.

18. I accept the mother’s evidence and make findings accordingly.  In my view, the mother’s evidence in relation to the impact on the child of such air travel at this stage in her development is supported by the expert evidence of the family consultant having regard also to the diagnosis provided by Professor T.

19. In addition, I have accepted and give weight to the restrictions so far as supervision of a minor is concerned which appears in Exhibit 4 under the heading “unaccompanied minors” to which earlier reference has been made.

Period of time to be spent with the father

1. The next matter which arises is the issue of periods of time to be spent with the father.

2. Given that it is accepted by the parties that travel by motor vehicle for one or more weekends during school term between H and Sydney is simply not practical or reasonable having regard to the time of travel as well as the effect of such travel upon the child, that leads to only one other possibility, and that is periods of time that may be spent over a weekend by the father with the child during school term in H.

3. I accept the father’s evidence that he has commitments in Sydney.  He is living with his partner and their two small children.  The father has employment constraints, as well as constraints of a financial nature.

4. Unfortunately, from a practical viewpoint this is a situation where the distance between Sydney and H has a severe impact on the time that the father could spend with the child that would be to her benefit.  However, the theoretical benefits of the child spending time with the father must be considered in a realistic manner for the reasons previously mentioned.  I do not accept evidence that might suggest that it is practical and reasonable for the child to travel by plane given the medical evidence of her condition and symptoms and the supervision, if any, which may be provided by a stranger.

5. There was no issue that the father can spend time with the child in H.  The mother is prepared to facilitate and is willing for there to be further periods of time for the child to spend with the father in H upon her receiving minimum notice.  Whilst the mother suggested that even being informed the previous day of a proposed visit may well be acceptable, I have my doubts as to whether that is a practical approach given arrangements that might be made on a given weekend involving the child, including socialising with other children and extra-curricular activities.

1. It was submitted by counsel on behalf of the independent children’s lawyer that seven days notice is a more reasonable approach.  There was no submission to the contrary made by counsel for the father.  Consequently, that is the approach I will take.

2. The next issue arises in relation to the periods of time that the child should spend with the father over the December/January school holidays.

3. The child had recently spent 10 days with the father which represented an extension of the time previously spent with him which in the past had been for a week.  There is no evidence to suggest that the 10 day period had any adverse affects upon the child.  Implicitly, this 10 day period was for her benefit.

4. The mother’s proposal is that the child spend a period of two successive weeks in the forthcoming December/January school holidays and that period of time be continued each year until the school holidays of 2012 and 2013 when it be increased to three weeks.

5. Counsel for the father submitted on his behalf that the relevant period of time should be a period of two weeks and then during a subsequent point of the school holiday vacation there be a further week.

6. The mother opposed that proposal because of the extensive travel by motor vehicle that will be involved and tiring effects upon the child and her perception that the child will not cope very well with that situation.

7. Counsel for the independent children’s lawyer suggested that it was in the child’s best interests for the child to spend a two week period as proposed by the mother and as and from the end of 2009 that period be increased to three weeks.

8. Were it not for the child’s medical condition, the submissions made on behalf of the father and the independent children’s lawyer would be attractive to the point of being persuasive so far as the child’s best interests are concerned.  However, the child has particular needs which must be carefully and sensitively catered for, given her medical condition.  I appreciate that the father’s approach is that perhaps in the past there had been too much emphasis upon the child’s condition and that she is more capable and resilient than the mother would suggest.

9. It was both surprising and unfortunate that the parties have not participated in a joint consultation with the paediatric specialist who knows the child and made the appropriate diagnosis some years ago and would be able to provide guidance to the parents from a medical viewpoint of coping strategies and the extent to which the child’s potential stress and anxiety could be accommodated.  Hopefully, the parents will take a more constructive approach in the future rather than spending financial and emotional resources on legal contests in court.

10. It is very much in the child’s best interests that the parents are able to co-operate as best as possible and to do so on the basis of receiving independent specialist medical advice which should be a touchstone for them so far as the care of the child is concerned.

11. As I mentioned to counsel for the independent children’s lawyer, it seems to me that in parenting cases in general and particularly in this case, if there are alternatives available which might attract the best interests of the child then the alternative which poses the least risk to a child’s development is the one which would be most attractive.

12. In this particular case, the child has made good progress.  That is emphasised in Exhibit 3 very much to the credit of the mother.  The father has also played his part in ensuring that his concern for the child’s welfare is met by the persistence of his relationship with her and his encouragement of her development, notwithstanding the difficult relationship that the parties have had for a considerable time after separation.

13. I consider that there are cogent reasons to increase the period of time in 2009 to three weeks.  The support for that approach is the period of 10 days recently spent with the father which was a significant increase above earlier periods of time.  However, the mother is understandably concerned that a rush to a significant increase of time may not be a matter which the child can handle beneficially for her in relation to her development and the meaningful relationship with both parents.

14. It would be self-defeating to provide for the larger period of time and then find that the child has not coped well and that may in turn set back the relationship with both the father and possibly the mother.

15. I recognise this was not raised in the medical evidence but is clearly a consideration which must be borne in mind.

16. It seems to me that this issue and a number of other issues, such as when the child will be ready to take part in air travel without either parent being present, is a matter upon which the parties should consult with the medical specialist who knows the child best and is able to take a history from each of the parents and provide guidance.  Of course, it is a matter to be considered jointly by the parties.  However, in my view it is in the child’s best interests to be conservative to ensure that the positive progress which has been made is not inadvertently interrupted by enthusiasm to provide for greater periods of time that the child spends with the father over Christmas than has been the case.

17. As I have pointed out to counsel, the child is still very young.  The child is 8 years of age.  There are still many years ahead when arrangements will have to be made for the child to spend more time with the father.  Should the child continue to make the progress which she has made to date then there is room for optimism that in the not too distant future, either by agreement between the parties, or perhaps following consultation with the child’s paediatrician, they will reach that particular point.

18. I am not satisfied on the evidence before me that such a point has now been reached.  It would represent a gamble that at the end of 2009 the period of time can be significantly increased from two to three weeks because of the child having of late made reasonable progress.  This is a matter which needs to be handled conservatively and sensitively so far as I am concerned.

19. It is open to the parents to join together in seeking further medical specialist advice which should guide them in the approach they should take in the future with regard to air travel and extended periods of time that the child should spend with the father over the December/January school holidays.

20. Consequently, I will make orders that provide for a period of two weeks during the December/January school holidays.  The mother informed me that she was confident she could make arrangements with the father as to which part of that school holiday period should reflect the relevant fortnight.  As a result, I do not see the need to be more specific so far as orders are concerned.

21. In my view, the child will have the benefit of a meaningful relationship with both parents given the restrictions under which they labour including the long distance between Sydney and H, financial restrictions and the child’s medical condition which must be handled in a careful and sensitive manner.  The child will have the potential to spend more than one weekend with the father in H during school term.  The child will spend half the school holidays at the conclusion of each school term, other than the last school term, with the father in Sydney.  To that extent, the child will have the benefit of the father’s home environment constituted by himself, his partner and their two children.  In addition, there will be a fortnight at the end of the year spent in similar circumstances.  The parties’ improved communication of late may lead them to do what I suggest is obvious, namely to have a joint consultation with the paediatrician who knows the child best.  They will be able to have guidance in relation to further periods of time to be spent by the child with the father as well as eventually dealing with the issue of air travel.

Equal shared parental responsibility

1. Last, but far from least, is the issue of whether or not the presumption of equal parental responsibility has been rebutted.

2. Section 61DA(4) is relevant in these proceedings.  It provides a ground of best interest to be established for the purpose of rebuttal of the presumption.

3. The mother’s evidence is that she will not only consult, but make joint decisions with the father in relation to health issues affecting the child.  The mother seeks rebuttal of the presumption on the basis that she has been the primary carer of the child since the parties separated four and a half years ago.  The mother has attended to the child’s daily needs and has been the primary parent through no fault of the father in advancing the child’s welfare on a daily basis and having to make decisions in that regard.  That has been particularly so, against a background where the parties’ communication has been almost non-existent.  Of late, communication between the parties has improved.  The mother contends that because of her need to concentrate upon and provide for the child on a daily basis with the child’s special needs which must be taken into account, having regard to matters affecting her behaviour the subject of expert evidence, that she is best placed to assess those matters and that the mother should have the sole parental responsibility in which it is contended is in the child’s best interests for her to do so.

4. The father’s case is that he is a dedicated parent.  Communication between the parties has improved and that it would lessen his parental input in the child’s development if he did not have equal shared parental responsibility for all major long-term issues affecting the child.

5. I have concluded that it is in the child’s best interests for there to be sole parental responsibility in favour of the mother on terms and conditions.

6. My reasons are that the child has special needs which must be catered for.  The parties’ communication and joint endeavours have been far from satisfactory, partly due to their previous conflicted relationship and also because of the distance between their places of residence.  In addition, the mother has solely attended to the education of the child, not only in terms of choice admittedly on a unilateral basis but on her evidence, which is not contradicted, that she has met the costs of education.  The mother is in a position to assess daily how the child is coping with her education at present and into the future.

7. For those reasons I propose to make an order that provides for the mother to have sole parental responsibility so far as the child’s education is concerned, and in relation to all other long-term issues affecting the child including her health the parties will have equal shared parental responsibility.

Other matters

1. I will make a further order that in relation to the child’s education, notwithstanding that the mother will have sole parental responsibility in that regard, she will be required to appropriately consult and inform the father before any decision is made.

2. I was surprised to hear that the issue of school reports and other information should be the subject of an order.  That was apparent in the submissions by counsel for the father.  It did not appear to be an issue raised in evidence.  However, that proposal was not opposed by the mother or independent children’s lawyer.  Indeed, the independent children’s lawyer proposed an order which would ensure that the father received school reports and assessments in relation to the child.

3. The independent children’s lawyer also raised the question as to whether the parents might be assisted in attending Relationships Australia or a family relationships centre to discuss issues relevant to the child.  There was no enthusiastic response to that suggestion by either of the parties.  It is always open to them to utilise the possible benefits of attending one or other of those organisations.  In my view, it does not require an order for something which they may do on a voluntary basis.

4. I should also add that the parties should be aware that they are free to make alternative arrangements for periods of time that the child may spend with one or other of them as well as the manner of communication.  In the event that the parties may consider under pressure that they do not have that flexibility then I will make the appropriate order enabling them to do so.  Clearly, the child’s needs and requirements will change as she becomes older.  What may be suitable for this child today may not be suitable in one or more years time.  Some flexibility and sensitivity will need to be exercised.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose.

Associate: 

Date:  26 November 2008