Heydon and Tryon - [2008] FMCAfam 135

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HEYDON & TRYON

[2008] FMCAfam 135

FAMILY LAW – Interim children’s orders – father resigned from work to look after child – presumption applied – child’s best interests for parents to have shared parental responsibility – Court must consider whether spending equal time with each parent is in child’s best interests – not spend equal time but spend substantial and significant time.

Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA

Applicant:

MR HEYDON

Respondent:

MS TRYON

File Number:

MLC 102 of 2008

Judgment of:

Turner FM

Hearing date:

13 February 2008

Date of Last Submission:

13 February 2008

Delivered at:

Melbourne

Delivered on:

19 March 2008

REPRESENTATION

Counsel for the Applicant:

Ms. Jenkins

Solicitors for the Applicant:

Cahill & Rowe Family Law

Counsel for the Respondent:

Mr. Howe

Solicitors for the Respondent:

Harwood Andrews Lawyers

ORDERS

Until further order, the child J born in 2004 is to spend time with her mother two days per week, which must include days that fall on weekends and holidays and days that do not fall on weekends and holidays, plus time that allows the mother to be involved in J’s daily routine and on occasions and events that are of particular significance to J, for instance on her birthday.
The legal representatives for the parties are to draw up agreed orders that give effect to this decision, that include details of days and times to be spent with the mother, and of changeover points and times.
The orders are to be filed with the Court within 21 days.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 102 of 2008

MR HEYDON

Applicant

And

MS TRYON

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant father is seeking sole parental responsibility for his daughter J who will turn four in 2008. He proposes that J live with him, and spend two nights per week with her mother. The mother seeks sole parental responsibility for J, and that J live with her three days each second week and four days each other week.
The main issue in dispute is how much time J has spent with her mother since the parents separated, and whether the mother would be “overburdened” by J spending more than two nights per week with her. Another issue in dispute is whether the mother is suffering from ongoing medical problems.
J has been living with her father more than with her mother since the parents separated on 14 February 2006 (Exhibit R1 Letter from Cahill & Rowe dated 6 February 2008): although to some extent this is explained by the time the mother spent in the G Clinic Private Hospital (the “Clinic”). It is not clear to the Court whether J spends three nights with each party on a rotating basis (Annexure JWT1 to the Affidavit of Ms Tryon sworn 6 February 2008), or two nights per week with the mother (c/f Affidavit of Mr Heydon 4 January 2008 at paras 7, 17, 20, 24 and 25; Affidavit of Ms Tryon sworn 11 February 2008 at paras 5 to 8, 19 and 21).
The parties agree that J should spend some time with her mother.
Agreed relevant facts are:
·
The mother was in the Clinic from 6 September 2006 to

22 October 2007
being treated for a bipolar condition.
·The mother has had J living with her for a two or more days per week since the parties separated (other than when the mother was in the Clinic).
In determining the best interests of J the Court must consider the matters in s.60CC(2) and (3) which provide:
“How a court determines what is in a child's best interests
Primary considerations
(2) The primary considerations 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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(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;
(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);
(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;
(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;
(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;
(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;
(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;
(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;
(i)     the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)     any family violence involving the child or a member of the child's family;
(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;
(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;
(m)    any other fact or circumstance that the court thinks is relevant. ”

Primary considerations

On the material before the Court there is no doubt that it would be to J’s benefit to have a meaningful relationship with both of her parents.
There is no evidence before the Court to establish a need to protect J from physical or psychological harm, from being subjected to, or exposed to abuse, neglect or family violence. Head lice find their way into many households and this does not necessarily establish abuse or neglect.

Additional considerations

There is no evidence of views expressed by J for the Court to take into account.
The Court must consider the nature of the relationship of J with each of her parents and with other persons. There is nothing before the Court to establish that J does not have a good relationship with both of her parents. There are no relevant “other persons”.
The father says that the time J spends with her mother should be limited so that the mother is not “overburdened”. It is alleged that the father is not willing to facilitate and encourage a close and continuing relationship between J and her mother. It is alleged that the father will not allow the mother to have telephone contact with J (Affidavit of

Ms Tryon sworn 11 February 2008 at paras 11 and 22) and that he is not otherwise encouraging their relationship.
It appears as though the father is willing to encourage the mother’s relationship with J, but feels that the mother would be overburdened by J staying with her mother for more than two nights each week. On the material before the Court, neither the father nor the Court is able to reach the conclusion that more than two nights per week would overburden the mother.
There is no evidence that the mother is not able to care for J.

The father suspects, but there is no medical evidence, that the mother has a psychiatric condition. There is no adverse medical evidence of the mother’s mental health or of substance abuse. A medical test eight days before the hearing showed that the mother’s system is clear of marijuana (Affidavit of Ms Tryon sworn 11 February 2008, Annexure JWT2).
The Court now considers the remaining issues under s60CC(3).
(3)(d)The arrangements proposed by each parent would not result in J’s separation from either of her parents or from any other child.
(3)(e)There are no practical difficulties or expenses that stand in the way of either parents’ proposal, other than that the mother’s proposal is likely to interrupt J attending Axxx Playgroup and Kindergarten.
(3)(f)Both parents appear to have the capacity to provide for J’s needs including her emotional and intellectual needs.
(3)(g)J will turn four in 2008. There are no matters that are an issue here.
(3)(h)Is not an issue here.
(3)(i)Each parent demonstrates a responsible parental attitude towards J.
(3)(j)There are no allegations of family violence that require consideration.
(3)(k)There are no family violence orders.
(3)(l)It is preferable for the Court to make an order that would be least likely to lead to the institution of further proceedings in relation to the child.
Section 60CC(4) requires the Court to consider whether each parent has fulfilled their responsibilities to J and have taken the opportunity to participate in making decisions about long–term issues and to spend time with and communicate with J. It is significant that the father currently does not work so that he can look after J on a full–time basis (Affidavit of Mr Heydon sworn 4 January 2008 at para 5). The mother has taken the opportunity to spend time with and communicate with J. The father has made a decision about J attending Axxx.
Each parent has facilitated the other spending time with (although not for the time sought), and communicating with, J. However, the allegations by the mother in her Affidavit sworn on 11 February 2008 at paras 11 and 22 about telephone contact raise concern.
Section 60CC(4A) requires the Court to consider events that have occurred since the parties separated on 14 February 2006. Since that time the parents have cooperated in J spending time with each of them, including during the period from 6 September 2006 to 22 October 2007 when the mother was in the Clinic for treatment in relation to depression and a bipolar disorder. There is no medical evidence of ongoing problems.
During the mother’s time in the Clinic, the father took J to spend time with the mother, on request by the mother. Also, the mother had telephone contact with J almost daily (Affidavit of Ms Tryon sworn 11 February 2008 at paras 2 to 5): this appears to counter balance the mother’s evidence that the father has at times prevented telephone contact.
On discharge from the Clinic the parents agreed to resume the shared care arrangement for J, with J to spend two days each week with the mother, and the balance with the father; although the mother says that J spent three nights with her. That is a question of fact that cannot be determined at this time.
When making a parenting order, in relation to a child, the Court must apply a presumption “that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child” (s.61DA(1)).
The presumption does not apply if there are reasonable grounds to believe that a parent of the child…has engaged in abuse of the child or there is family violence involved (s.61DA(2)). There is no evidence of either here.
When making an interim order the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied (s.61DA(3)). The Court does not consider that equal shared parental responsibility would not be appropriate.
The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility (s.61DA(4)). There is no such evidence here.
The Court determines that it is in J’s best interest for the parents to have equal shared parental responsibility for her.
The Court must therefore consider whether J spending equal time with her parents would be in her best interests or impracticable (s.65DAA(1)).
After considering the factors required by s.65DAA(1) and s.60CC (see above) the Court determines, that it would not be in J’s best interests to spend equal time with each of her parents as it would not be practicable for her to continue at Axxx (see below).
Having regard to how far for the parents live from each other (G and A, which is approximately 77kms apart), and the parents capacity to implement arrangements for J to spend time with each of them, and their limited capacity to communicate and resolve difficulties that might arise if the Court were to order that J spend each time with each of them, and the impact that an equal time arrangement would have on J’s activities including the Axxx Playgroup and Kindergarten (s.65DAA(5)), the Court decides that J should not spend equal time with each parent but should spend substantial and significant time with each of them.
J is to spend two days per week with her mother. The two days each week to be spent by J with her mother must include both days that fall on weekends and holidays and days that do not fall on weekends and holidays, plus time that allows the mother to be involved in J’s daily routine and on occasions and events that are of particular significance to J; for instance on her birthday (s.65DAA(3)).
The Court decides that the agreement reached between the parties after the mother was discharged from the Clinic, (which appears to be that J spend two nights per week with her mother), is in J’s best interests. Which days they are and times of changeover are issues for the parties to agree on, as are the changeover points and times (s.60B(2)(d)). The days with the mother must include days that fall on weekends, holidays, weekdays, and days of special significance to J, and which allow the mother to be in involved in J’s daily routine.
The Court directs the legal representative for the parties to draw up agreed orders that give effect to this decision, that include details of days and times to be spent with the mother and of changeover points and times. These orders are to be filed with the Court within 21 days.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate:

Date: 19 March 2008