Henderson and Pyke
[2009] FMCAfam 962
•15 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HENDERSON & PYKE | [2009] FMCAfam 962 |
| FAMILY LAW – Interim parenting – existing equal time arrangement – 7 year old child diagnosed with ADHD – school report does not indicate existing arrangement negatively impacting upon child – orders made for fortnightly week about living arrangement. |
| Family Law Act 1975, ss.11C, 60B, 60CA, 60CC, 61DA, 61DB & 65DAA |
| Goode & Goode [2006] FamCA 1346 |
| Applicant: | MS HENDERSON |
| Respondent: | MR PYKE |
| File Number: | SYC 3630 of 2009 |
| Judgment of: | Kemp FM |
| Hearing date: | 1 September 2009 |
| Date of Last Submission: | 1 September 2009 |
| Delivered at: | Sydney |
| Delivered on: | 15 September 2009 |
REPRESENTATION
| Solicitors for the Applicant: | John Spence & Associates (Ms Court) |
| Solicitors for the Respondent: | Browns The Family Lawyers (Mr Brown) |
ORDERS pending further order:
By consent, that the parties have equal shared parental responsibility for the child, [X], born in 2002 (“the child”).
That upon the father’s written undertaking to the Court to ensure the child continues his current tutoring with Kip McGrath, as agreed with the mother, the child live with the father:
(a)during school term in every fortnightly cycle in the first week, commencing on Friday after school and concluding on the following Friday before school;
(b)for half of the first, second and third term school holidays as arranged between the parties;
(c)from 9.00am to 5.00pm on Father’s Day in each year;
(d)subject to Christmas Day, for half of the Christmas school holidays, but not to be exercised in a block period, but a three week period to be divided into periods of two weeks and one week;
(e)on Christmas Day from 1.00pm to 7.00pm; and
(f)such other times as may be arranged between the parties in writing.
By consent, that the child live with the mother at all times other than when the child lives with or spends time with the father.
By consent, that the mother spend time with the child from 9.00am to 5.00pm on Mother’s Day, notwithstanding the other provisions of these Orders.
That the father have liberal telephone communication with the child, if the child is not spending time with the father:
(a)on the child’s birthday, with the father to initiate the telephone call to the mother’s mobile; and
(b)each evening between 5.30 pm and 6.30pm, with the father to initiate the telephone contact.
That the mother have liberal telephone communication with the child, if the child is not spending time with the mother:
(a)on the child’s birthday, with the mother to initiate the telephone call to the father’s mobile; and
(b)each evening between 5.30 pm and 6.30pm, with the mother to initiate the telephone contact.
By consent, that the mother will authorise the child’s school to forward to the father copies of the child’s school reports and such other information as may relate to the progress and participation of the child in school activities.
By consent, that each party will advise the other of their residential address and contact telephone number or will advise the other party within 48 hours of any change in their residential address or telephone contact number.
By consent, that each party will advise the other of any medical emergency involving the child requiring hospitalisation or treatment by a specialist physician.
By consent, that neither party denigrate the other or allow third parties to denigrate the other in the presence or hearing of the child.
By consent, that neither party consume illegal substances in the presence of the child.
By consent, that each party be restrained from taking the child for treatment and obtaining reports from any other paediatrician other than Dr O or Dr M without the prior written consent of the other party.
That the matter is stood over for mention on 6 November 2009 at 9.30am.
IT IS NOTED that publication of this judgment under the pseudonym Henderson & Pyke is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 3630 of 2009
| MS HENDERSON |
Applicant
And
| MR PYKE |
Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 22 June 2009 and as amended by a minute of proposed order, the mother seeks certain interim parenting orders in respect of the child of the relationship, [X] born in 2002 (“the child”), as follows:
1. That the child live with the mother.
2. That the parties have equal shared parental responsibility in relation to the child.
3. That the father spend time with the child:
(a) Each alternate weekend from the conclusion of school Friday to the commencement of school Monday;
(b) Half of 1st, 2nd and 3rd term holiday, as arranged between the parties;
(c) Subject to Christmas Day, for half of the Christmas school holidays but not to be exercised in a block period but a three week period to be divided into periods of two weeks and one week;
(d) On Christmas Day from 1.00pm for a period of school holidays as agreed [sic]; and
(e) Such other times as may be arranged between the parties in writing.
4. The father to have liberal telephone communication with the child:
(i) On the child’s birthday if the child is not spending time with the father. The father to initiate the telephone call to the mother’s mobile.
(ii) Each evening between 5.30pm and 6.30pm.
The father to initiate telephone contact.
5. The mother will authorise the child’s school to forward to the father copies of the child’s school reports and such other information as may relate to the progress and participation of the child in school activities.
6. Each party will advise the other of their residential address and contact telephone number or will advise the other party within 48 hours of any change in their residential address or telephone contact number.
7. Each party will advise the other of any medical emergency involving the child requiring hospitalisation or treatment by a specialist physician.
8. Neither party to denigrate the other or allow third parties to denigrate the other in the presence or hearing of the child.
9. Neither party to consume illegal substances in the presence of the child.
10. Each party to be restrained from taking the child for treatment and obtaining reports from any paediatrician other than Dr O or Dr M, without the prior written consent of the mother.
11. Not reproduced.
12. Not reproduced.
Orders 11 and 12 of the minute of order were not pressed by the mother in light of the orders of the Court made on 29 July 2009.
The respondent father, in his response filed 25 June 2009 and as amended by a minute of proposed order, seeks his own interim parenting orders as follows:
1. That the parents shall have equal shared parental responsibility for the child.
2. That the child live with the applicant father as follows:
2.1 During school term in every fortnightly cycle in the first week commencing on Friday after school and concluding on Friday before school.
2.2 One half of all school holidays.
2.3 From 9.00am to 5.00pm on Father’s Day in each year.
3. That the child live with the mother at all other times;
4. That the mother shall spend time with the child from 9.00am to 5.00pm on Mother’s Day, notwithstanding the other provisions of these orders.
The balance of the orders sought in the father’s proposed minute were not pressed, save that the Court noted that the father had lodged an appeal to the Social Security Appeals Tribunal (“SSAT”) against a child support assessment determination.
The mother’s initiating application was first returned before the Court on 29 July 2009, when the Court made orders for the parties to attend a Child Dispute Conference (“CDC”) with a Family Consultant nominated by the Child Dispute Section of the registry on 20 August 2009 at 11.00am, such conference being reportable pursuant to s.11C of the Family Law Act 1975 (“the Act”). The Court also ordered, by consent, that the parties shall jointly make decisions about the medical care of the child, including:
a. The parties shall attend upon Dr O and cause the child to so attend at such times as recommended by Dr O in relation to the diagnosis of the child of Attention Deficit Hyperactivity Disorder (“ADHD”) or any related diagnosis.
b. That the parties shall attend upon Dr M and cause the child to so attend at such times as recommended by Dr M in relation to the obtaining of his advice as to any diagnosis of the child of ADHD or any related diagnosis.
c. Each party shall follow the directions of the said doctors in relation to attendance at appointments and provide to the said doctors such information and documentation as required by the doctors.
On 20 August 2009, the parties attended before Dr M Fisher as the appointed Family Consultant in compliance with the CDC order. The Consultant recorded that the parties had agreed that there had been conflict between them and, in particular, between the mother and the father’s partner. This conflict was preventing the child from receiving the specialist care that he needed and from participating in extracurricular activities and social events. The child’s exposure to ongoing conflict caused him stress and anxiety. The Consultant recorded that the parents were attending specialist appointments for the child together so as to inform the specialists of the child’s condition. The Consultant recorded that the father agreed to attend a step-parenting blending family program with his partner. The mother also provided the father with her mobile telephone number and the parties agreed that he was not to provide that number to anyone else, including his partner.
The Consultant recorded that the issues remaining in dispute were with whom the child lives and time to be spent with the other parent. The Consultant recorded that the mother proposed that the child live with her and spend five nights a fortnight with the father, whereas the father proposed that the child live with him and spend time with the mother four nights a fortnight. The Consultant recorded that the father now sought, on an interim basis, equal time on a week about basis. As no agreement could be reached at the CDC, the matter came on for interim determination on 1 September 2009.
On the hearing, Ms Court appeared for the applicant mother and
Mr Brown for the respondent father.
Principles to be applied and procedure to be followed
The best interests of the child remain the paramount consideration: s.60CA of the Family Law Act 1975 (“the Act”).
The best interests of the child are to be determined by an examination of the factors as set out in s.60CC of the Act. These factors are to be examined, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s.60B of the Act, as follows:
(1) The “objects”… are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The “principles” … are … :
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never been married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including a right to enjoy the culture with other people who share that culture).
The Full Court in Goode & Goode [2006] FamCA 1346 set out a number of procedural steps to be followed on an interim application, namely:
(a) Identifying the competing proposals of the parties;
(b) Identifying the issues in dispute;
(c) Identifying any agreed or uncontested relevant facts;
(d) considering the matters in s.60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s.61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s.65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Evidence
The mother relied on: -
a)Her affidavit affirmed 16 June 2009.
b)Her affidavit affirmed 24 July 2009.
c)Her affidavit affirmed 28 August 2009.
The father relied on: -
a)His affidavit sworn 23 June 2009.
b)His affidavit sworn 27 July 2009.
The Court, as stated, hears this matter on an interim hearing basis, as the parties have confirmed there is urgency in obtaining relief.
The Court’s determination, therefore, is based only on a study of the documents before it, including affidavits read and the submissions of the parties’ legal representatives. There is no provision at the interim hearing stage for a more extensive hearing where evidence can be tested in cross-examination and where the Court can make findings of fact, after testing credibility and truthfulness.
Proposals
The parties seek the various competing orders set out above.
Issues
The essential issues in dispute, the subject of determination today, are:
a)Who the child will live with.
b)How much time is to be spent with the other party.
Factual matters
There appear to be a number of relevant uncontested facts, as follows:
a)The mother was born in 1980 and is currently 29 years old.
b)The father was born in 1975 and is currently 33 years old.
c)The child, [X], was born in 2002 and is currently seven years old.
d)The parties commenced cohabitation in about 2002 and on the mother’s version separated in 2004. The father says separation occurred in 2008.
e)In August 2007 and April 2009, the child was diagnosed with mild ADHD.
f)The child has been prescribed a drug known as Ritalin, but has not taken that drug since 7 July 2009.
g)In 2009, the father commenced a relationship with Ms B.
h)The child attends [P] School and is in Year 2.
i)The father’s occupation is [omitted].
j)The mother’s occupation is [omitted].
k)The father lives at Property S.
l)The mother lives at Property B.
The mother asserts in her affidavit that the parties commenced to live together in 2002 but separated in 2004. She says following separation they reached a verbal agreement in relation to the father spending time with the child. The mother asserts that this verbal agreement was to the effect that the father would spend each alternate weekend from Friday to Sunday with the child and that school holidays and Christmas periods would be shared. She says this arrangement appeared to work well. The mother says that if either of the parties were working, the child would spend time with his grandparents. The mother says that she has been in employment during the majority of the time since the parties’ separation.
The father disputes the mother’s asserted date of separation and says that the parties experienced difficulties in their relationship in the period 2004 to 2005. He says they jointly resided at the home at Property N from 2003 to 2006. The father says that the parties lived together at times during this period but not at all times. It would appear from the mother’s affidavit that she arranged for various apartments to be rented in her sole name, being at [M] in December 2004, [R] in February 2006, [C] in February 2007 and [P] in January 2008. The mother says that the father did not live with her in those apartments. The father asserts that he did live with the mother in those apartments for at least some of the times covered by the leases.
The father says that the parties separated in 2006, although not permanently and their relationship continued. He says that the parties resided together after that time and their previous pattern of “separation and reconciliation” continued until a final separation date occurred in September 2008. On that basis, the father asserts that the child was living with him and the mother for substantial periods of time and that the alternate weekend time that the mother asserted he was spending with the child, did not, in fact, occur.
The Court cannot make a decision as to this disputed issue on an interim hearing basis. However, what appears to have occurred, at least since as early as February 2009 or as late as April 2009, is that the child has lived with the father for approximately seven days in each fortnightly cycle. This involved the child staying with the father on a Monday, returning to the mother’s care on Tuesday, returning to the father on Wednesday, and then with the father on Friday from the conclusion of school until the commencement of school on the Monday morning. This pattern appeared to change in the second week, with the parties again sharing the time with the child on alternating days.
The father’s proposal is based on continuing this essential equality of time, although now on a week about basis, accepting that the daily alternating regime has been somewhat problematic for the child with the increased number of changeovers promoting conflict between the parents.
Presumption of equal shared parental responsibility
Section 61DA(1) of the Act creates a presumption, which the Court must apply before it makes any parenting order in respect of a child (and this is the case whether or not a party has sought a specific order for equal shared parental responsibility). By virtue of this section, it is presumed that it is in the best interests of the child concerned that his or her parents have “equal shared parental responsibility” for the child.
The presumption, however, does not apply if there are reasonable grounds for the Court to believe that the child concerned has been subject to abuse or family violence (s.61DA(2)) or in the case of an interim hearing the court considers it inappropriate (s.61DA(3)) or the presumption may be rebutted by evidence which satisfies the Court that it would not be in the interests of the child for his parents to have such equal, shared parental responsibility (s.61DA(4)) [emphasis added].
The Court notes that this interim decision may be disregarded if a different decision is to be made at the final hearing, pursuant to s.61DB of the Act.
Both parties have agreed that they should have equal shared parental responsibility for the child. Accordingly, the Court will make that order by consent. Further, under s.60CC(5) of the Act, the Court is not required to have regard to any or all of the matters set out in subsection (2) or (3) when the Court is considering whether to make an order with the consent of all of the parties to the proceedings.
Time to spend
The making of an order for equal shared parental responsibility is, however, not of itself determinative of the amount of time that a child is to spend with his parents, but goes to the parents’ decision making responsibilities. It does, however, trigger the operation of s.65DAA (1) of the Act.
If the presumption is applied, certain matters follow by virtue of s.65DAA of the Act and the Court must positively consider whether orders should be made which result in the child concerned spending either “equal time” or “substantial and significant time” or some other time with both his parents.
If the presumption is applied, certain matters follow by virtue of section 65DAA of the Act, and the court, must positively consider whether orders should be made which result in the child concerned spending either equal time or substantial and significant time or some other time with both his parents. To determine what time orders should be made, the court must look to the best interests of the child, and whether the actual spending of such time is reasonably practicable.
Primary considerations
In order to determine the child’s best interests, the Court must have regard to the “primary considerations” under s.60CC(2) which are:
(a) the benefit to the child of having a meaningful relationship with both of the child's 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.
While the father alleges that in 2000 the mother threw his clothes and belongings out of the house, in 2001 to 2002 she punched him in the face after an argument, in 2003 she damaged his utility motor vehicle by kicking the driver’s side door in, and in about 2005 she destroyed family photographs by cutting them up with scissors, there are no other matters alleged which would impact on the Court’s consideration under this factor. Both parties agree that the child should spend substantial time with each of them. Notwithstanding these assertions by the father, his proposal sees the child spending seven nights a fortnight with the mother.
In early 2009, the father commenced a relationship with Ms B. It would appear that the mother and Ms B do not get along. The Court accepts that it is of benefit to this child in having a meaningful relationship with both of his parents. The Court does not see that there is any need to protect the child from any physical or psychological harm from being subjected to or exposed to abuse, neglect, or family violence, in the circumstances of the child living with either the father or the mother.
Additional considerations
The Court must have regard to each of the ‘additional considerations’ under s.60CC(3) of the Act separately, which are set out below:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
Nothing was put to the court concerning any expression of the child’s views in this matter.
(b) the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child);
The father’s evidence was that the child has a good relationship with him, his partner Ms B, her son, his parents and indeed the mother. Both the mother’s proposal and the father’s proposal give sufficient time for the child to develop meaningful relationships with each parent and the other persons mentioned.
(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The mother submits she has a history of maintaining relationships between the father and the child. She submits it is the father who has interrupted her relationship with the child.
The father submits it is the mother who has failed to make the child available and that he encourages the child to spend time with her.
Little weight can be attached to these diverging submissions at the interim hearing stage.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The child is, it would appear, already spending the number of days contemplated by the father’s proposal with the father, albeit with the changeovers noted in paragraph 22 above.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
Nothing was put to the Court relevant to this factor.
(f) the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
Issues concerning the lack of parental ability to communicate are set out in the mother’s affidavit. These include the father’s alleged arranging for medical appointments without the mother’s knowledge and the alleged failure by the father to have the child attend his soccer training on the basis that the father wished the child to attend another soccer team where his partner’s child could also attend to play.
The mother deposes to the child having a great relationship with all four of his grandparents. He further has a close relationship with her two sisters and their children and with the mother’s cousin and her three children.
The mother submits it has been her who has taken the child to medical appointments and attended the child’s school. The mother has also arranged for tutoring. The issue concerning the timing of the parties’ separation impacts on this consideration, as the father submits that these activities were to some extent effected when he says the parties were not separated. The father further submits that he can attend to the child’s school drop-offs and/or pick-ups.
The Court accepts that both parents have the relevant capacity to provide for the child.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.
The father says he is of Polish background and wishes the child to experience that heritage. The mother says that she will support this. The Court gives this some weight.
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
These factors do not apply to this child.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The mother says that the father has failed to acknowledge the child’s educational and medical needs. She further says that the father failed to continue the child in his soccer and extra-curricular activities and to encourage a relationship with her.
The father says that the mother has made parenting decisions without involving him. The mother does not dispute that the child was enrolled in a new school ([P]) in January 2009, but does not say whether she discussed this with the father. The father says he was not consulted. The father also asserts that the mother has withheld the child from him and that she has made threats that the child will not be allowed to see the father again. These are denied by the mother.
(j) any family violence involving the child or a member of the child's family;
This factor does not apply to this child.
(k) any family violence order that applies to the child or a member of the child's family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person;
There is an Apprehended Violence Order against the father’s partner, Ms B, taken out on behalf of the mother, which is listed for a hearing on 24 November 2009. No interim orders have been made.
(l) 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
The Court finds that, as this is an interim hearing, this factor must be assessed in this light.
(m) any other fact or circumstance that the court thinks is relevant
There is no other fact or circumstance that the Court considers relevant.
Matters in s.60CC(4) & (4A)
The Court must, without limiting its consideration of the factors in s.60CC(3)(c) and (i) of the Act, consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent (and in the case where the child’s parents have separated, having regard to the events and circumstances since separation) and in particular the Court must consider the matters set out in that section.
The Court finds no matter which would otherwise impact on its view that the appropriate order is for week about time with each parent as discussed further below.
Reasonably practicability of ‘spending time’
The Court in determining the reasonable practicability of the child spending time with the parents pursuant to s.65DAA(1) of the Act, must have regard to the following matters set out in s.65DAA(5):
(a) how far apart the parents live from each other; and
The distance between the parties’ residences would not impact on the practicability of a week about arrangement.
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
The father’s evidence was that he lives in a four bedroom home with his partner and her 6 year old son. The child has his own room.
The father submitted that he has provided the mother with financial assistance and paid child support. The mother disputes this.
The Court finds that the parties have the relevant capacity to implement a week about arrangement.
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
Both parties have directly conflicting evidence as to the contents of communications between them. The Court accepts that when not arguing over matters, the parties do have the capacity to communicate with each other. However, a proposal which reduces the number of changeovers is to be given significant weight so as to avoid the potential for ongoing conflict.
(d) the impact that an arrangement of that kind would have on the child; and
The father’s evidence was that he would wish to change the child’s school. The father gives convenience as one of his reasons. The Court is of the view that unless the parents agreed, the child should remain at his existing school pending the provision of a family report and the Court’s assessment of that issue.
The father also proposed to register the child into soccer. That is a matter which the parties should seek to reach some agreement on. A shared parenting arrangement requires both parties to consider modifying their positions to ensure that the child is able to move freely between both households, so as to keep up schooling and sporting interests without being placed under the pressure of pursuing different conflicting interests in each household.
(e) such other matters as the Court considers relevant
The father’s evidence was that while he works full time, his work as a contractor enables him to have flexible hours whereby he can spend time with the child.
Conclusion
Finally, the Court must have regard to all the matters set out in s.60CC, to consider how, together, they should give effect to either or both of the primary considerations in determining the child’s best interests.
The father alleges that there have been a number of disputes and disagreements between the parties. The court notes that it would not be in a position to come to any final conclusion about this at this interim hearing stage. The father asserts that the current arrangement, which has been in place since about April 2009, must have come about by virtue of an agreement between the parties. The mother asserts that it was imposed on her by the conduct of the father. There have been no earlier court orders referable to this child. Nevertheless, notwithstanding how this position came about, the child has been experiencing approximately seven days per fortnight with each of the father and the mother on an alternating near daily basis.
The mother asserts that the current position has impacted on the child’s education and provides in her affidavit material correspondence from the child’s school, recording the child’s attendance record of having missed some 10 days in the three terms of 2009, being absent for some eight days in term 2. In the period between March and August 2009, the child had three unexplained absences, seven partial absences, one sick absence and six leave absences. Some of these absences can be explained by the father attending upon specialist doctors in relation to the child’s diagnosis of ADHD. There was no doubt some issue between the parties concerning the treatment regime for the child, and that was made the subject of the consent orders on 29 July 2009.
Further, it would appear that the child has experienced some difficulties in his school performance as was detailed in a classroom functioning report dated 28 April 2009. Nevertheless, while the child finds it difficult to listen and talk to those around him, he was noted as being accepting of decisions and accepted by most of his peers in the playground. The classroom functioning report recorded that he was, at that time, working below the average grade levels. His report for semester 1 in 2009 indicates sound achievements in most of his subjects and his teacher records him as being friendly, mainly cooperative, and enjoying class and school activities. The child was, however, experiencing some difficulty with tasks and required teacher guidance and support. The child’s concentration was improving and he was gradually becoming less distracted from tasks. With continued effort and concentration, the report noted that the child should keep improving his skills. The report appeared very favourable.
There was some argument that the child’s improved performance in school was as a result of his taking the drug Ritalin. However, both parties agreed that the child had ceased Ritalin on 7 July 2009. Nevertheless, it would appear that the regime of equal time between the parents occurring at least since April 2009 had not negatively impacted on the child’s performance.
Of particular significance to the child’s improvement, may be the mother’s evidence concerning the home tutoring that she has arranged through Kip McGrath at [B]. This home tutoring occurs on a Monday and Tuesday night, twice per week. The Court is of the view that if the father is to have an equal time week about regime, it will be on the basis of his written undertaking to ensure that the tutoring occurs during the week that the child lives with him.
The mother has taken out Apprehended Violence Order proceedings against the father’s partner. Apparently those proceedings are listed for hearing on 24 November 2009. The mother alleges that the father has been verbally abusive to her in the presence of the child. The parties have agreed to injunctive orders referrable to this issue.
The mother’s affidavit gives a detailed history of the problems in the parties’ communication and particularly issues surrounding the changeover and the practical problems associated with the child attending school and being prepared for school when living with each party on a rapidly changing basis. The Court is of the view that these problems can potentially be overcome by a regime of the parties having at least week about time with the child.
Further, the alternating daily basis for the child spending time with each party has caused difficulties as deposed to in the mother’s latest affidavit, wherein it would appear that the child had some dental problems which required the child to be absent from school. Notwithstanding this, it would appear that the father wished to exercise time with the child that night when the mother called the police.
The Court is of the view that the parties need to be given some certainty in the time arrangements to overcome current problems. The certainty of a week about regime will potentially achieve this outcome. Whilst the father gives a detailed history of his involvement with the child, which is not substantially disputed by the mother, the mother says that the father’s affidavit is to a large extent silent with respect to the child’s treatment for ADHD and education problems. On the material, it would appear that the father has to some extent left those matters to the mother. However, after what he asserted was the separation date, he has, on his evidence, become more active in involving himself in those matters. So much so, that the mother says that that has negatively impacted on the child. The consent orders of 29 July 2009 deal with the medical issues concerning the child and the issue of the child’s ADHD and the parties’ agreement as to how to deal with matters arising out of that issue.
Accordingly, the Court is of the view that the father’s proposal for a fortnightly week-about living arrangement is in the child’s best interests. The Court has provided for a 1.00pm-7.00pm time on Christmas Day for the father as the proposed order sought by the father was not clear in its terms. The Court has also proposed reciprocal liberal telephone communication for each party when the child is not otherwise living with that party.
The Court is satisfied, on balance, that the proposed orders are in the child’s best interests and accordingly will so order.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Kemp FM
Deputy Associate: Caroline Nolan
Date: 15 September 2009
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