Jones and Ors and Webber

FAMILY COURT OF AUSTRALIA

JONES AND ORS & WEBBER

[2007] FamCA 1477

FAMILY LAW – CHILDREN – Interim Orders – With whom a child spends time

Family Law Act 1975 (Cth)

FIRST APPLICANT:

Mr Jones

SECOND APPLICANT:	Mrs Jones Snr
THIRD APPLICANT:	Mr Jones Snr

RESPONDENT:

Ms Webber

FILE NUMBER:

SYC

4898

2007

DATE DELIVERED:

7 December 2007

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Stevenson J

HEARING DATE:

28 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hodgson

SOLICITOR FOR THE APPLICANT:

The Argyle Partnership

COUNSEL FOR THE RESPONDENT:

Mr Schonell

SOLICITOR FOR THE RESPONDENT:

Michael Conley Lawyers

Orders

I make the following orders:

That all existing interim parenting orders herein in relation to the child born … July 2005 be discharged.
Pending further order, that the child spend time with his father for a period of 5 weeks from the date of these orders as follows:
·Each Tuesday from 8:00am until 12:00noon, and
·Each Thursday from 8:00am until 12:00noon, and
·Each alternate Sunday from 9:00am until 4:00pm
After a period of 5 weeks from the date of these orders, the child shall spend time with his father as follows:
·Each Tuesday from 8:00am until 4:00pm, and
·Each Thursday from 8:00am until 4:00pm, and
·Each alternate Sunday from 9:00am until 4:00pm.
That the child spend time with his father on Christmas Day 2007 from 8:00am until 12:00noon.
That the parents meet at the “[L]” store in D for the purpose of effecting changeovers at the commencement and conclusion of all time periods prescribed in these orders.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 4898 of 2007

MR JONES

First Applicant

And

MRS JONES SNR

Second Applicant

And

MR JONES SNR

Third Applicant

And

MS WEBBER

Respondent

REASONS FOR JUDGMENT

THE PROCEEDINGS

Mr Jones and Ms Webber are the parents of a little boy, (“the child”), who was born in July 2005 and is 2½ years old. The paternal grandparents, Mrs Jones Snr and Mr Jones Snr are also parties to the proceedings. The matter came before me on 28 November 2007 as the adjourned first day of a Less Adversarial Trial.
The present issue is the amount of time which the child spends with his father and his paternal grandparents, pending a final determination. There was also a dispute as to what arrangements should be made for the child to spend time with each of his extended families on Christmas Day 2007.
There are two sets of interim orders operative at present. On 10 April 2006 the Local Court Family Matters ordered that the child spend time with his father from 8:00am until 4:00pm each Tuesday and Friday and each alternate Sunday between 12:00noon and 4:00pm. On 4 September 2007 orders were made by consent that the child spend time with his paternal grandparents each Tuesday from 9:00am until 11:00am and each alternate Saturday from 9:00am until 1:00pm.

BACKGROUND

The father, who is 31, and the mother, who is 24, had a relatively brief relationship prior to the birth of the child. They have not lived together at any time.
It seems that in 2006 they were able to make arrangements for the child to spend time with his father in addition to the provisions of the interim orders. For a time from about August 2006 the child stayed overnight with his father.
In March 2007 the father moved to New York, to establish a business. He returned to Sydney between 31 July 2007 and 11 August 2007 and then went back to New York. He returned to Australia on 16 November 2007 and intends now to live permanently in Sydney. He was also in Sydney for a short period in early October 2007.
It appears that the interim orders for the child to spend time with his paternal grandparents operated successfully while the father was in New York. The difficulties seem to have arisen when he is in Sydney and both sets of interim orders have been implemented simultaneously.
Unfortunately both grandmothers have become involved in disputes at changeovers. It seemed to be common ground that the paternal grandfather does not participate in this fracas. Most regrettably, the police have become involved on one occasion.

THE PROPOSALS OF THE PARTIES

The mother proposed that for a period of five weeks the child spend time with his father each Tuesday and Thursday from 8:00am until 12:00noon and each alternate Sunday from 8:00am until 12:00noon. Thereafter, he would spend time with his father from 8:00am until 4:00pm each Tuesday and Thursday and each alternate Sunday from 9:00am until 4:00pm. She proposed that Friday be changed to Thursday, as the child attends daycare on Friday.
The father proposed that the existing orders continue but that the times be changed to 9:00am until 5:00pm. He was not prepared to substitute Thursday for Friday and proposed a Saturday to accommodate the child’s attendance at childcare.
The paternal grandparents proposed that the interim orders made on 4 September 2007 be discharged, if the current arrangements are unvaried. If there is to be any reduction in the father’s time with the child, they sought to maintain their alternate Saturdays.
As to Christmas Day, the mother proposed that the child be with his father from 8:00am until 12:00noon. The father proposed that the child spend time with him from 9:00 or 10:00am until 4:00pm.

THE ISSUES

The issues for determination in this interim application were thus of narrow compass, as follows:
1.Should there be an introductory period of five weeks of reduced time for the child with his father?
2.Should there be a change from Friday to Thursday or Saturday?
3.Should the two sets of existing interim orders operate simultaneously for five weeks?
4.What time should the child spend with his father on Christmas Day?

SECTION 60CC FACTORS
The Primary Considerations
Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents; and
section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Both parents and extended families have a great deal to offer the child. There is no doubt that he will benefit from a meaningful relationship with each of his parents.
It would be to his great advantage if he could be spared the conflict between his parents and grandmothers on changeovers. These experiences can only be very distressing for him and damaging in the longer term.

The Additional Considerations

I have considered carefully all of the additional considerations set out in section 60CC(3) but I will refer only to those factors which appear to me to be relevant to the present proceedings.
Section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understand) that the court thinks are relevant to the weight it should give to the child’s views;
The child is only 2½ years old and, obviously, has expressed no views which would carry any weight.
Section 60CC(3)(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);
Valuable evidence generally in this matter was given by Family Consultant Ms M. In the context of this factor, Ms M stressed the significance of the father’s absence in New York for a period of six months, during which he spent very limited time with the child. She said that: “six months’ disruption is pretty significant” because “a 2 year old cannot sustain a relationship over time”.
Ms M was of the view that the child needs to be re-established in feeling secure with his father. She said also that “there is a need to build a solid foundation of trust for [the child]”.
It seemed that the mother readily conceded that the child has an excellent relationship with his paternal grandparents. Her only concern about the child’s relationship with his father seemed to be as to the effect of the break in contact for six months. As is obvious, her concerns were given legitimacy by the expert opinion of the Family Consultant.
Section 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;
Each of the parents articulates a willingness and ability to facilitate and encourage a close and continuing relationship between the child and his other parent. In their affidavit evidence, however, they each attempt to paint the other as unreasonable and obstructive and themselves as accommodating and child-focussed.
In my opinion, both the father and the mother need to focus on the price which their son is paying for the conflict which they continually inflict on him during changeovers. The maternal and paternal grandmothers should also take active steps to spare their grandson from this distress. As the Family Consultant said: “if changeovers are tense, it is not surprising that he comes back stressed”.
At least, both the father and the mother agreed to attend a parenting after separation course. In fact, the mother has already done so. The Family Consultant recommended the Unifam course known as “Keeping Contact”.
Section 60CC(3)(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 changes proposed by the mother would be in the child’s best interests, in the opinion of the Family Consultant. Ms M said:
·    “I agree with five weeks”
·    “I don’t agree that all periods should be for 8 hours”
·    “The suggested frequency is good”
·    “Keep the frequency with perhaps a couple of shorter periods and a longer period on weekends”
·    “The only problem with continuing time with the paternal grandparents on Saturdays is that there are too many changeovers – it might be a bit much”
I was not told by counsel for the father why any or all of these expert opinions of the Family Consultant were erroneous or ill-conceived. I was not told why the father’s proposal will better meet the child’s best interests than will that of the mother, having regard to the evidence of the Family Consultant.
It was submitted on behalf of the father that extended periods with him, including a daily sleep, will facilitate the introduction of overnight time. This proposition did not find favour with the Family Consultant. In my view, the need to re-establish for the child a sense of security with his father far outweighs any possible contribution to the smooth introduction of overnight time.
I can see no reason to do other than accept the expert evidence of Ms M. I thus conclude that the changes which she supported are more advantageous to the child’s well-being than an immediate re-introduction of the provisions of the existing interim orders.
In his affidavit sworn on 27 November 2007 the father said as follows:
“I am my own boss and can therefore dictate what hours I work. The existing orders made on 31 March 2006 provide for me to spend time with [the child] during business hours, however, because I can dictate the hours I work I am able to care for [the child] on those occasions”.
In light of that evidence, the father’s opposition to a change from Friday to Thursday seems difficult to justify. A practical result of a change to Saturday would be that the child would be with his father for one day each and every weekend. The mother’s affidavit indicates that she takes the child to her mother’s property in the Hunter Valley on some weekends. I have no doubt that this activity is enjoyable for the child and I see no reason to deprive him of this opportunity.
Section 60CC(3)(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;
All parties live in the N area. There are no concerns as to this factor.
There was a dispute as to the changeover point until the end of the interim hearing. It was then agreed that changeovers would occur at the “[L]” store in D.
Section 60CC(3)(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;
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
This interim hearing is not the forum to conduct an in-depth analysis of the parental capacity and attitude of each of the father and the mother. The limited evidence and procedural constraints of an interim hearing make it dangerous for me to do so. I would note, however, that the father praised the parenting ability of the mother in his affidavit and that she, for her part, recognised the great importance for the child of strong relationships with his father and extended paternal family.
I will reiterate my earlier comments as to the need for the father and the mother to reduce the conflict on changeovers and to deal with each other civilly in the presence of their son. They must act in a more child-focussed manner or the child will ultimately pay a very heavy price for their behaviour. These observations extend also to the maternal and paternal grandmothers.
Section 60CC(3)(j): any family violence involving the child or a member of the child’s family;
The mother made untested allegations that the father has subjected her to verbally and physically abusive conduct. She alleged that he has acted in a similar manner toward her mother, the maternal grandmother. The father made counter-allegations of verbal and physical abuse against the maternal grandmother.
These allegations, if nothing else, show the level of conflict to which the child is exposed. I can only speculate as to how much distress he must be suffering as the result of the behaviour of his parents and grandmothers.

THE PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY

In my view, it is inappropriate that this presumption be applied in the context of these interim proceedings. Neither party’s proposal involved equal time or substantial and significant time. As noted, the issues which I am to determine fell within a very narrow compass. I have ordered a Family Report, which will address the broader issues of long-term parenting arrangements.

CONCLUSION

As I have said, I was told of no reason why I should ignore the expert evidence of the Family Consultant. My responsibility is to attempt to make orders which are in the best interests of the child, rather than to accede to the will of any party.
I propose to change the child’s Friday time with his father to Thursday, for reasons already canvassed. As noted, I have difficulty in accepting the father’s resistance to Thursday in light of his affidavit evidence given only 2 days before the interim hearing.
The paternal grandparents, Mr and Mr Jones Snr, will have three opportunities per week to spend time with the child when he is with his father, pursuant to the orders which I propose to make. I agree with the opinion of Ms M that the continuance of alternate Saturdays in their care would involve too many changeovers. I repeat my observation that I regard it as desirable that the child have a full weekend with his mother every second week, for reasons including the opportunity to travel to his maternal grandmother’s property in the Hunter Valley.
The mother’s Christmas Day proposal would seem to me best to meet the child’s interests, if the practicalities are taken into account. The child would be awake and active in the morning and asleep from about 12:00noon for 2 hours. I was puzzled by the insistence of counsel for the father on the importance of the child sharing a meal with his paternal family on Christmas Day, given that he is only 2½ years old. I would have thought that it would be preferable for him to be with his father and paternal family when he is awake and would enjoy opening presents, playing with toys, et cetera. The father’s proposal would mean that he would spend 2 or 3 hours with him and his family, then sleep for about 2 hours, then wake up and be returned to his mother and her family by 4:00pm. He would then go to sleep at about 6:00pm
I agree with counsel for the mother that the practical result of the father’s proposal is that there would be little or no quality time on Christmas Day for the child with his mother and maternal family. No submission put on behalf of the father persuaded me that this outcome would be in the child’s best interests.

I certify that the preceding forty one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate

Date: 7 December 2007

[2007] FamCA 1477

7 December 2007

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Family Law

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Expert Evidence