JOHN & DANE
[2007] FMCAfam 93
•14 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JOHN & DANE | [2007] FMCAfam 93 |
| FAMILY LAW – Children – parenting orders – preschool child. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 60CC(3), 60CC(3)(b)(d)(e) 4, 4A, 60CG, 61DA, 60DA(1), 64B, 65D, 65DAA, 65DAB |
| Applicant: | MR JOHN |
| Respondent: | MS DANE |
| File Number: | BRM 8285 of 2005 |
| Judgment of: | Slack FM |
| Hearing date: | 13 February 2007 |
| Date of Last Submission: | 13 February 2007 |
| Delivered at: | Brisbane |
| Delivered on: | 14 March 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Anderson |
| Solicitors for the Applicant: | Murdochs Lawyers |
| Counsel for the Respondent: | Ms Pointing |
| Solicitors for the Respondent: | Hemming & Hart Lawyers |
ORDERS
That all previous Orders be discharged.
That except as otherwise stated, the Father and the Mother are to have equal shared parental responsibility for the major long term issues of the child.
That the parties are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)they shall inform the other parent about the decision to be made;
(b)they shall consult with each other on terms that they agree;
(c)they shall make a genuine effort to come to a joint decision.
That notwithstanding the provisions of Order 2:
(a)the Mother shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with her;
(b)the Father shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with him.
That except as otherwise ordered, the child [X] born [in] 2004 is to live with the Mother.
Time with the other parent
That the child is to spend time with (and/or live) and/or communicate with the Father as agreed between the parents and if they fail to agree then as follows:
(a)each alternate week:
(i)during 2007 and 2008 from 5.00pm Friday until 5.00pm Sunday, to continue fortnightly thereafter;
(ii)from 2009 and thereafter, from the conclusion of school on Friday until the commencement of school on Monday with such time to start on Thursday if the Friday is a public holiday or pupil free day and conclude on Tuesday if the Monday is a holiday or pupil free day, to continue fortnightly thereafter, until the commencement of any school holiday period;
(b)during 2007 each Wednesday from 3:00pm until 6:00pm with the Father to collect the child from kindergarten and return the child to the Mother at the [H] Police Station;
(c)during 2008 each Wednesday after the weekend time in Order 6(a) from 3:00pm until the following morning with the Father to collect the child from kindergarten and return the child to the kindergarten and each other Wednesday from 3:00pm until 6:00pm with the Father to collect the child from kindergarten and return the child to the Mother at the [H] Police Station;
(d)from 2009 each Wednesday from after school until the commencement of school the following morning with the Father to collect the child from school and return the child to school;
(e)from 2009, Order 6(a)(ii) and (d) shall be suspended for the weekends during any school holiday period (which shall be deemed to include the first weekend after the school term ends and the weekend before school recommences) and to recommence on the weekend after the school term recommences, determined as if the sequence had not been interrupted;
School holidays
(f)until 2009, the Father spend time with the child for four (4) non- consecutive three (3) day block periods of holiday time per year with such time to not occur between 24 and 26 December and not be added to a period of weekend time and the Father is to give the Mother at least 28 days notice in writing of his intention to exercise that time;
(g)from 2009 and thereafter, for one half of all school holiday periods:
(i)being the first half of the Easter, June/July, September/October and Christmas school holidays in even numbered years; and
(ii)the second half of the Easter, June/July, September/October and Christmas school holidays in odd numbered years;
(h)for the purposes of these Orders, the school holiday time shall commence:
(i)if the Father’s time falls in the first half of the holidays, from after school on the day the school term finishes and conclude at 5.00pm on the day calculated to be half of the holidays;
(ii)if the Father’s time falls in the second half of the holidays, from 9.00am on the day calculated to represent half of the holidays when contact shall end at 9.00am on the day the school term commences;
(iii)school holidays shall be deemed to commence at close of school on the day the school term finishes and conclude at 9:00am on the day the child returns to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights, the Father shall retain the additional night;
Specific time for the Father
(i)on Christmas Day:
(i)from 9.00am Christmas Eve until 2.00pm Christmas Day in even numbered years;
(ii)from 2.00pm Christmas Day until 5.00pm Boxing Day in odd numbered years;
(j)on the birthday of the child:
(i)if a school day, from 3.00pm until 6.00pm;
(ii)if a non-school day, from 1.00pm until 6.00pm;
(k)on Father’s Day (if a non-contact week-end), from 9.00am to 5.00pm;
(l)after 2008 on the telephone at such times as the child reasonably requests but otherwise between 6:30pm and 7:00pm on alternate Sundays and in relation to such communication the Mother shall:
(i)ensure that the child is available to receive the telephone call;
(ii)arrange for the child to telephone the Father on the following night if, for any unforeseen circumstance, the child misses the telephone call from the Father;
(iii)ensure that the child has privacy during the conversation.
Collection and delivery
That except as otherwise ordered, the Father shall collect the child from and return the child to school or kindergarten.
That if the child is not attending school or kindergarten, the child shall be collected by the Father or his nominee from the Mother or her nominee at the commencement of his time with the child at the [H] Police Station.
That if the child is not attending school, the child shall be collected by the Mother or her nominee from the Father or his nominee at the conclusion of his time with the child at the [H] Police Station.
That each parent shall deliver and return the child’s clothing, school supplies and belongings and the child’s clothing shall be returned in a clean condition.
Specific time for the Mother
That until 2009 the Mother shall be at liberty to suspend the Father’s time with the child for a period of two (2) weeks twice in each year upon the giving of 28 days notice to the Father in writing.
That in the event the child is in the care of the Father on Mother’s Day, the birthday of the child or Christmas Day, then the Father shall return the child to the Mother:
(a)at 9.00am on Christmas Eve in odd numbered years and 2.00pm Christmas Day in even numbered years;
(b)at 9.00am on Mother’s Day;
(c)on the birthday of the child;
to allow the Mother to spend time with the child on the same terms as the Father under the terms of these Orders.
Specific issues
That the Mother and Father shall:
(a)keep the other parent informed at all times of their residential address and landline contact telephone number;
(b)keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the child and authorise that practitioner to provide the other parent with information that they are lawfully able to provide about the child;
(c)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child. This Order authorises any treating medical practitioner to release the child’s medical information to the other parent.
That the parents authorise, by this Order, the schools attended by the child to give each parent information about the child’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child (at that parent’s cost).
That during the time the child is with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)speak of the other parent respectfully;
(c)not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
That the Mother be permitted to remove the child from Australia on one occasion in each year but subject to the following conditions:
(a)That the trip occur during times that do not interfere with the time that the child spends with the Father under these Orders.
(b)That, pursuant to s.67ZD of the Family Law Act, the Mother deposit with the Registry Manager of this Court at Brisbane any passport that she holds for the child [X] or any other passport which would enable the child to be removed from the Commonwealth of Australia.
(c)That the Registry Manager must hold any Australian Passport deposited in safe custody until the Mother deposits the sum of $15,000.00 into the Trust Account of Murdoch Lawyers.
(d)That upon the Registry Manager receiving written confirmation from Murdoch Lawyers of the receipt of the said $15,000.00 the passport can be released to the Mother.
(e)That if the Mother pays the $15,000.00 pursuant to order 16(c) the current Pace Alert for the child [X] be suspended for the period that the Mother travels to the Philippines and the Mother be at liberty to travel to the Philippines with the child during that period.
(f)That the Mother deposit with the Registry Manager of this Court at Brisbane the passport released to her for the child [X] within 24 hours of her return to Australia.
(g)That if the Mother fails to return to Australia on the date stipulated by her without reasonable excuse, Murdoch Lawyers are authorised to release the money held in the Trust Account to the Father.
(h)That the monies be held in an Interest Bearing Account for the Mother pending the safe return of the Child to the Commonwealth of Australia but subject to any further Order of the Court.
(i)That the parties sign all such documents as are necessary to enable the Trustees to invest the monies in an Interest Bearing Account.
(j)That the mother shall:
(i)provide the Father with a copy of her itinerary for the trip including but not limited to departure and return times and dates; a contact telephone number for her and the child and the address at which they will predominantly be based (provided that they will not be required to provide details of every address at which the child will stay) at least 28 days prior to scheduled departure;
(ii)provide to the Father a copy of the return air tickets for the child;
(iii)during the trip, arrange for the child to telephone the other parent on at least one occasion in each week.
That the process to be used for resolving disputes about the terms or operation of these Orders shall be as follows:
(a)The parents shall consult with a Family Dispute Resolution Practitioner to assist with resolving any dispute or reaching agreement about changes to be made.
(b)They shall pay the costs of the Family Dispute Resolution Practitioner equally.
(c)In the event that they cannot agree on a Family Dispute Resolution Practitioner, the Mother shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability.
(d)The Father shall choose one of the listed practitioners within seven (7) days of receipt of the list.
(e)If the Father fails to choose, then the Mother may choose.
That unless there are some emergent circumstances, before an application is made to a Court for a variation of these Orders to take into account the changing needs of the child, each party is to take the steps referred to in Order 17.
IT IS NOTED that publication of this judgment under the pseudonym John & Dane is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRM 8285 of 2005
| MR JOHN |
Applicant
And
| MS DANE |
Respondent
REASONS FOR JUDGMENT
The parents in these proceedings are not able to agree to future parenting arrangements for their child [X] born [in] 2004.
Mother’s proposal
The orders sought by the mother are particularised in the annexure to her affidavit filed on 16 January 2007.
The effect of that proposal is that there will be a graduated increase in the time that the child spends with his father commencing with time each alternate weekend from 5.00pm Friday until 5.00pm Sunday and from 3.00pm to 6.00pm each Wednesday.
Father’s proposal
The parenting orders sought by the father are set out in his affidavit filed on 16 January 2007.
The effect of his proposal is that commencing immediately the child spend time with him each alternate weekend from after childcare on Friday until before childcare on Monday and overnight each Wednesday until the commencement of childcare on Thursday. In addition he seeks some orders in relation to holidays and special contact arrangements.
Background facts
I have accepted and taken into account the following facts.
The mother is 41 years (born [in] 1966).
The father is 69 years (born [in] 1937).
The parties commenced a relationship in November 2001 and separated on 12 January 2004. They did not marry.
The parties separated between October 2002 and February 2003 and between February 2003 and 12 January 2004. They separated on six occasions.
The parties have one child together – [X], now aged 2 years.
The parties separated prior to the birth of the child. Since the birth of the child the mother has been primarily responsible for his care.
Between birth and December 2004 [X] had limited contact with his father.
After February 2005 the father exercised contact with [X] on a regular basis, particularly Friday nights between 6.00pm and 11.00pm.
On 30 September 2005 Registrar Dittman, in the Family Court, made orders for contact between [X] and his father.
Those orders were amended by my orders dated 5 April 2006 and the contact arrangements are set out at paragraphs 49 to 50 of the father’s affidavit filed on 16 January 2007.
The child currently attends day care in each week between Monday and Friday. The mother works full-time and she delivers him to day care at approximately 7.15am and collects him at around 4.30pm.
The child is apparently in good health; appears well cared for; has met his developmental milestones and would appear, at this stage, to be reasonably well adjusted.
The father conducts (in partnership) his own business and lives at [omitted] in Queensland. He is remarried and he has lived with his current wife since March 2006. His current wife is of Philipino heritage and is aged 20 years.
The mother resides with family members (her sister Ms T and Mr T and their son [name omitted]). She has not repartnered. She works full-time at [omitted] and has worked since 27 February 2006. The mother intends and hopes to find her own independent accommodation as soon as she is able.
The mother has no current proposals to change her arrangements.
The father has no current proposals to change his arrangements.
There was a history of violence in the relationship between the parties. They both accused the other of being violent towards the other and it seems that it is accepted that there was mutual violence. It was clear from the parties’ evidence and their affidavits that they have had a volatile relationship and their relationship continues to be poor.
Although both parties expressed a hope for improved communication between them, my assessment of their personalities was such that it is unlikely, in my view, that the parties will ever have the capacity to positively communicate with each other.
The parties have domestic violence orders against the other.
Legal principles
The court has pursuant to s.65D of the Family Law Act 1975 (as amended) (hereafter “the Act”) power to make a “parenting order”. A parenting order is defined by s.64B of the Act. The power to make a parenting order is subject to s.61DA and s.65DAB of the Act.
In deciding what (if any) parenting orders the court should make in relation to the child/children, the court must have regard to the best interests of the child/children as the paramount consideration (s.60CA of the Act).
In determining what is in a child’s best interests, I must consider the matters set out in s.60CC. The section prescribes “primary considerations” and “additional considerations”. There are two primary considerations. The first is “the benefit to the child of having a meaningful relationship with both of the child’s parents” and the second is “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.
The Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as the note to s.60CC indicates “consistent with the objects of this part set out in paragraphs 60B(1)(a) and (b).” I intend to give them careful consideration.
I must also take into account insofar as they are relevant the “additional considerations” set out in s.60CC(3). I must also consider (to summarise) the extent to which each parent has fulfilled his or her parenting responsibilities and has facilitated the other parent in fulfilling her/his parental responsibilities (sub-ss.4 and 4A).
I must also ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount (s.60CG).
I will be guided by s.60B which sets out the object of the part of the Act dealing with children and the principles underlying it.
Evidence relied upon by parties
The father in his case gave evidence and was cross-examined.
He called his wife as a witness and she was cross-examined.
The mother in her case gave evidence and she was cross-examined.
There was a report prepared by Dr M, Psychiatrist.
There are a number of factual disputes between the parties. I do not propose to make any general comments about the credibility of either of the parties or their witnesses. Insofar as I need to make findings of fact, I will do so in the course of my discussion about the matters relevant to my considerations.
I accept that Dr M has expressed her own views and those views were genuinely held by her. I also accept that in giving her opinions, she relied upon the information and facts as set out in her report.
Primary considerations
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.”
My conclusions as to these considerations are, in summary:
a)It is important to and in the interests of the child that he have a meaningful relationship with both his mother and father.
b)There is no need to protect the child from being exposed to the risk of family violence, abuse or neglect.
c)There is a risk of emotional harm from being exposed to ongoing conflict between his parents.
My reasons for reaching these conclusions are as follows:
a)Both parents acknowledge it is important for him to have a relationship with the other parent.
b)On the proposals of both parties, they agree that there should be an increasing time spent with his father. They disagree about how that should progress.
c)Neither parent alleges that the child is at risk of harm in the other’s household and neither parent alleges that there is violence in the other’s household.
d)As I have found, the parents have had a volatile relationship and they have been prone to violent outbursts. There have been at least two occasions when the child has been exposed to significant conflict between the parents. If that were to continue there is a real risk that the child would suffer emotional harm.
e)Otherwise the parents manage their feelings toward the other by either not communicating or via other means.
f)Both parties indicate a desire to improve communications but that would seem at least in the short term unlikely.
I treat these primary considerations as being central to the structure of the orders that I ultimately propose to make with respect to the best interests of the child.
Additional considerations
In this matter I propose to take into account the following additional considerations.
The child’s relationship with significant persons
This consideration is set out in s.60CC(3)(b) as follows:
“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);”
I accept and find that the child has a close and loving relationship with his mother and she has been his primary attachment. As indicated, the parties separated prior to the birth of the child and the mother has predominantly been responsible for his care for most of his life.
Dr M assessed his primary attachment was to his mother.
Dr M assessed that the child had a comfortable relationship with his father and I accept that he has a close relationship with his father.
That relationship is obviously not as strong as his relationship with his mother. It is the intention of the parties that his time with his father will increase and it is likely that the attachment will continue to develop and strengthen.
The child has appropriate relationships with members of the mother’s extended family who include her parents and siblings in Australia.
The child seems to have an appropriate relationship with the father’s new wife.
Parenting and discharge of parenting responsibilities
In the circumstances of this case, it is convenient to deal under this heading with a number of considerations listed in s.60CC. I consider under this heading the following paragraphs of s.60CC(3):
“(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;
………
(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.
……..
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;”
I also consider under this heading sub-ss.4 and 4(A), which are as follows:
“(4) Without limiting paras 3( c) and (i), the Court must consider the extent to which each of the child’s parents have fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long- term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A)If the child’s parents have separated, the court must, in applying sub-section (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.”
The father did not challenge the mother’s capacity as a parent to the child. He had no significant criticism of the quality of care provided by the mother.
The mother raised a number of concerns about the father’s capacity to parent. Dr M noted that the father had little knowledge of the child’s developmental progression. At a practical level, the mother raised a number of concerns about the father’s ability to cooperatively assist her in the parenting of the child.
The child has particularly sensitive skin and changes in diet can cause diarrhoea and other digestion issues.
The mother says that she tries to give the father information about the diet and other specific health needs of the child but he consistently ignores her requests.
The father acknowledged receiving instructions from the mother but denied that he had not complied, in the main, with her various requests. He acknowledged that there had been occasions when he had given the child food and beverage that was not recommended by the mother but explained the circumstances of that occurring. He says that he received limited information from the mother about the ongoing health needs of the child.
I am not able to conclude that the father deliberately ignores the instructions given by the mother as to the care of the child (in particular his dietary needs). In my assessment, the father holds the view that he does not need instructions as to how he should care for his son and is impatient with the mother in her attempts to give him those instructions. This inevitably leads to open conflict and the personalities of the parties are such that this is likely to continue. The child however is in good general health and with time and with his reaching his developmental milestones there should not be the same need for the parties to exchange information about his daily needs.
Attitude to parenting
I accept that the father has wanted to maintain a continuing relationship with his son and has wanted an active involvement in his upbringing.
I suspect that it is likely that his current wife will perform most of the daily tasks associated with the care of the child but I accept that the father will remain actively engaged in spending time with the child.
The father says that the mother does not support his relationship with the child and he argues that the only way the relationship between the child and himself can develop is if he spends increasing time with the child.
Whilst I accept that the parties have a poor relationship I am unable to conclude that the mother does not value or support the relationship between the child and his father.
Since the orders were made there is no evidence the mother has failed or refused to provide the child for contact. The father himself says that the mother, on most occasions at changeovers, encourages the child to go with his father.
There is no suggestion that he has any significant difficulties in making the transition between households.
The mother’s proposals for the time the child spends with his father are largely in keeping with the recommendations of Dr M. I am satisfied that she does not seek to inhibit the development of the child’s relationship with his father. I am satisfied that her proposals are child focussed and based on what she sees as the developmental needs of the child. She considers that as yet he is too young to spend too much time away from her as his primary attachment. She is supported in that view by Dr M.
When they are together the parties seem able to contain their hostile feelings towards each other but it is clear from the evidence that, from time to time, those feelings break out in overt conflict.
If that continues into the longer term, then I would anticipate that the child will suffer emotional harm.
Effect of any changes in the child’s circumstances
In the circumstances of this case, it is convenient to deal under this heading with the considerations in s.60CC(3)(d) and (e) of the Act, namely:
“(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;”
The mother’s evidence was that the proposals of the father represent a significant change for the child and in light of his age and level of development, is not in his interests at this time.
Dr M supported the mother’s views and supported her proposals.
The effect of the evidence of Dr M was that:
a)At this stage of the child’s development there should not be any significant disruption to the primary attachment that he has with his mother. She was of the opinion that the father’s proposal would likely cause such a disruption to his development.
b)She was of the view that he should not spend significant overnight time away from his primary attachment figure (indeed she considered the proposal of the mother was not in the child’s interest at this time but acknowledged there might be other factors that balance in favour of the mother’s proposal).
c)She was of the opinion that frequent changes in the child’s residence would also likely cause a disruption in his development and a disruption to his need to maintain closeness to his primary attachment figure.
d)She concluded that the fact the mother worked during the day was a reason for him not to spend overnight away from his mother.
I accept those opinions.
Family violence
I have already considered and made findings about this issue in my consideration of the primary issues. In view of my findings it is unnecessary for me to consider this issue again.
Parental responsibility
Under s.61DA(1), when making a parenting order, 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. However, the presumption does not apply in certain circumstances, namely:
“(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
……
(4)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 child’s parents to have equal shared parental responsibility for the child.”
In this case, having regard to findings I have made, I do intend to apply the presumption.
Equal or substantial and significant time with each parent
In this case, one of the parenting orders I propose to make will be that the parents are to have equal shared parental responsibility for the child.
Accordingly I am required by s.65DAA to consider whether to make orders that the child shall spend equal time, or substantial or significant time with each parent. The section provides relevantly that I must:
“(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”
I will consider therefore whether the child spending equal time with each of the parents would be in the best interests of the child and whether it is reasonably practicable.
The section also relevantly provides that if the court does not make an order for the child to spend equal time with each parent, it must:
“(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.”
Accordingly if I am not satisfied that the child should have equal time with their parents, I will consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and whether it is reasonably practicable.
Summary
The conclusions and findings that I have made in relation to the primary and additional considerations form the basis for my considerations about the parenting orders that I intend to make.
Ultimately in this matter I conclude that it is in the best interests of the child to make the orders set out at the commencement of this judgment which include an order that the child live with the mother and spend time with the father as particularised.
My reasons for reaching this conclusion are as follows and, in reaching the conclusion that I have, I have considered whether it is in the interests of the child to spend equal time or substantial time with each of his parents:
a)Neither parent considers (and I agree) that it is in his interests to spend equal time with each of his parents.
b)Whilst the parents disagree about the amount of time that he should spend with his father, they do agree that he should live predominantly with his mother and that he needs to spend time with his father on a regular basis and at least each week. I agree with those propositions.
c)I accept that the proposals of the mother at this stage in his development are more in accord with his best interests at this time. I accept that it is not in his interests to be away overnight from his mother and primary attachment too frequently and it is not in his interests to change households (for overnight stays) too frequently. I do consider that the father’s proposal would unduly disrupt his routine and development. With time I expect that he will develop a very close attachment with his father and there will be opportunities for him to spend significant time with his father. There is no need in my view to rush that process and potentially jeopardise his current development.
d)The quality of communication between his parents is poor and neither has the capacity to see how their own personality impacts on the paucity of the communication. For the child the result is that important information about his routine and development is not exchanged. A prime example of that is that the parents are at different stages of his toilet training. I gather that the father started training him in September last year and the mother some time after that and neither has effectively told the other what they are doing.
e)Whilst I accept that the mother can be volatile and at times fiery in her dealings with the father, I accept that she is a good parent and is motivated to ensure that the child develops a relationship with his father.
f)I also consider that the father can be dismissive and disrespectful of the mother but I am satisfied that he is motivated to participate in the care and development of his son.
Overseas travel
The mother seeks the permission of the Court to be able to take the child to visit her family in the Philippines in the future.
During 2006, after a contested hearing, she was given permission to travel to the Philippines with the child on the basis that she pay a bond of $15,000. As I understand it, the trip went ahead and she returned as she had indicated she would.
The mother has no current plans to travel to the Philippines. She says that she wants the opportunity to do so in the event of some emergency or planned holiday. She says that she has her parents and other relatives in the Philippines.
The father opposes the mother’s application for permission to remove the child from Australia and in particular, to take him to the Philippines. He is highly suspicious that the mother will not return to Australia thereby thwarting any orders of the Court and he is concerned that he would have significant difficulty securing the return of the child where the Philippines is not a Hague convention country.
He says that if the mother is permitted to travel overseas, then he would ask for the imposition of a bond to secure her return and to provide him with some financial assistance in the event that she does not return.
The father acknowledges that, in the longer term, it will be important for the child to travel overseas. He has Dutch heritage and ultimately would like to travel to and visit his relatives in the Netherlands.
He acknowledges that the mother has Philippine heritage. He says though that the child, at this age, would not benefit from such overseas travel and there is no need to consider future arrangements until they arise.
The mother argues that she still has strong family ties to the Philippines and her parents reside in the Philippines. She acknowledges though that her parents regularly travel to and spend time in Australia.
She says that she regards Australia as her permanent home. Although she has no property in Australia she is in full-time employment and she has many family members in Australia. She says she has no intention of returning to the Philippines at any time to live.
The father contends that she still owns property in the Philippines and she could and would choose to live there at any time.
I am satisfied that the mother regards Australia as her home and intends to reside here permanently.
I am also satisfied that she has no intention of residing permanently in the Philippines.
It is important to and in the interests of the child that he have exposure to his mother’s culture and extended family and I consider that it is in his interests even at this age to have contact with the mother’s family and heritage in the Philippines. The mother was given permission to travel to the Philippines last year and she did so in accordance with and in compliance with the orders of the Court.
I am satisfied that the mother would not jeopardise her continued stay in this country by defying the orders of a Court of this country and I am also satisfied that safeguards can be put in place to further ensure her return.
I do consider that a bond is necessary as an incentive to the mother to return and to also provide some assistance to the father if she does not do so. Although the mother asserts that she cannot meet the bond conditions, she did so last year and the fact that she may need to borrow the money from relatives further enhances, in my view, the likelihood of her return.
I consider that the orders that I have made are in the best interests of the child.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Slack FM
Associate:
Date: 14 March 2007
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