Kendle and Beamish

[2016] FamCA 561

FAMILY COURT OF AUSTRALIA

KENDLE & BEAMISH [2016] FamCA 561

FAMILY LAW – CHILDREN – Hearing de novo – application by the father to increase his time with the child – where the father alleges that he was the primary carer of the child during the relationship – where the mother disputes the father’s position – evidence that the child has a strong attachment to both parents – where the father’s proposal provide for the child to spend 10 nights per fortnight with him – where the mother’s proposal provides for the child to spend no more than three days apart from each parent – interim orders made in accordance with the mother’s proposal

Family Law Act 1975 (Cth)

Goode & Goode [2006] FamCA 1346;(2006) FLC 93-286

APPLICANT: Mr Kendle

RESPONDENT: Ms Beamish

FILE NUMBER: MLC 1721 of 2016

DATE DELIVERED: 7 June 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 7 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hoult

SOLICITOR FOR THE APPLICANT: Peter Szabo Family Law

COUNSEL FOR THE RESPONDENT: Ms Smallwood

SOLICITOR FOR THE RESPONDENT: Resolve Conflict

Orders

1. That the orders of 6 April 2016 made by Senior Registrar Fitzgibbon be varied as follows:-

   1.That the child B born … 2013 (“the child”) live and communicate with the husband and wife in a two-week cycle as follows:-

   In week one:-

   (a) With the husband:-

   i.From 6.00pm  Monday until 6.00pm Tuesday, commencing 13 April 2016;

   ii.6.00pm Friday until 6.00pm Sunday, commencing 8 April 2016; and

   iii.By Skype for a period of up to 15 minutes on Thursday from 6.00pm;

   In week 2

   (b)    with the husband:

   i.6:00pm Wednesday until 9:00am Friday or commencement of day care that day, commencing 13 April 2016; and

   ii.By Skype for a period of up to 15 minutes on Tuesday from 6.00pm;

   iii.with the wife in weeks 1 & 2 at all other times when not living with the husband and subject to order 1 (b)(ii) & 2 (b).

   2    (a)   That changeovers be shared equally between the parties and if not taking place at day care then to and from their respective homes; and in addition

   (b)    the changeovers on Fridays pursuant to order 1(a) (ii) are to be by wife collecting the child from day care, or the husband’s home if the child is not at day care or day care is not open, or if the wife is not able to attend to collecting the child at day care then in such instance and on notice from the wife to the husband, he may collect the child at the end of day care and take her to his home to await changeover.

2. That the husband’s Application in a Case filed 8 April 2016 be otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kendle & Beamish has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1721 of 2016

Mr Kendle

Applicant

And

Ms Beamish

Respondent

REASONS FOR JUDGMENT

1. The matter of Kendle & Beamish comes before me today in a Judicial Duty List.  The application before the Court is the father’s Application in a Case filed 8 April 2016, in which he seeks a review of orders made by Senior Registrar FitzGibbon on 6 April 2016. 

2. The father seeks that orders be made in the terms of his Application in a Case filed 1 March 2016.  That is an application that the child of the marriage, B, who was born in 2013 and is almost three years of age, live with the father, and spend time with the mother on alternate weekends from 4.00 pm  on Friday to 9.00 am Monday and each alternate Wednesday from 4.00 pm until 9.00 am Thursday.  The effect of that application is that the child would spend time with the father for 10 nights a fortnight and with the mother for four nights a fortnight. 

3. That application is opposed by the mother.  She seeks that the orders of Senior Registrar FitzGibbon continue, it being her position that they are working well and are and will continue to be in the child’s best interests.

4. The background to the matter is as follows. 

5. The father is aged 47 years.  He is qualified in a professional capacity, although he is currently unemployed. 

6. The mother is aged 44 years.  She is a health professional, who works in academia on a part-time basis. 

7. There is one child of the parties’ relationship, to whom I have already referred, B, who is aged almost three years. 

8. The parties rely upon both the affidavits filed on their behalf in respect of the application determined by Senior Registrar FitzGibbon.  They have also filed affidavits since that time.  In particular, the father relies upon an affidavit filed 3 June 2016, and an affidavit of 27 April 2016, together with the affidavit that was filed in support of the applications that were heard before the Senior Registrar. 

9. The mother, for her part, relies upon her affidavit filed 27 May 2016, in conjunction with the material that was before the Senior Registrar.

10. The issue in the case, from the father’s perspective, is that he says that he was the primary caregiver for the child for the period of almost three years, up to the time of the parties’ separation.  On that basis, he says it is appropriate that those arrangements continue, and that he continue to have primary care for the child until further order.  He points to the fact that he was not working, that the mother was engaged in full-time or part-time employment, and he says that he was primarily responsible for all aspects of the child’s care.

11. The mother takes issue with those submissions.  It is her evidence that she had a period following the child’s birth where she was on maternity leave, that following her period of maternity leave, which she deposes was for a period of about three months, she returned to part-time employment, and that her employment for the bulk of the time since late 2013 has either been three or four days a week.  Further, she says that there have been periods where the child has been in her sole care for extended periods, and that that arrangement has been with the agreement of the father.  In particular, she points to the period between 6 May 2015 and 21 June 2015, when she and the child travelled to New Zealand.  Whilst the father was there for the first few days of that period, he returned to Australia, leaving the child in the mother’s care.

12. Ultimately, at an interim hearing, I am not in a position to make finding in relation to these contentious issues.  What I must do, as is directed by the Full Court, is to look to the areas of common ground and, otherwise, to other areas where there might be independent evidence that will assist me in determining what is in the child’s best interest. 

13. In particular, I have regard to the observations of the independent expert engaged by the parties, that is, Mr C, who has prepared a report dated 31 March 2016.  In the conclusions to that report, Mr C reports, at paragraph 7.2:

    From the history of her care as I could discern it from my interviews and from my informal observations, I do not think I could form a decisive opinion about whether one of [the child’s] attachments to either parent could be considered primary,  but it was abundantly clear to me that she had developmentally important bonds with both [the father] and [the mother] that were central to her emotional security. 

14. Mr C is in a unique position, insofar as he has had the opportunity of interviewing the parties and he has also had the opportunity of observing the parties with the child.  He is unable to say that the child has a primary attachment to one or the other parent.  That indicates to me that the assertions made by the father, as to who was primary caregiver through the period of the parties’ relationship are not borne out by the independent evidence, insofar as the child’s relationship with both of her parents is concerned.

15. There are a number of other factual issues between the parties, with respect to what their intentions were as to care arrangements during the course of the relationship.  The father, in his most recent affidavit material, seems to be maintaining that it was the intention of the parties that he continue in a role as a full-time caregiver.  However, the evidence of the mother indicates that certainly in the later part of 2015, plans were afoot for the father to either retrain, but, certainly, to obtain advice and to attend programs to assist him in his resumption of some employment.  To that end, he had applied for a training course to assist him in that task and the mother annexes to her affidavit evidence of those arrangements.

16. There are allegations raised by the father to Mr C as to the mother’s excessive alcohol consumption.  She takes issue with those matters and, indeed, in response indicates that, in fact, it was the father who had issues with alcohol during the course of the marriage. 

17. The father, in his last affidavit, seems to concede that at least at some point in his life he felt the need to attend Alcoholics Anonymous.  He concedes that he certainly attended that service on one occasion. 

18. Ultimately, that is not a matter that assists me in determining what is in the child’s best interests moving forward.  It is indicative of the discord between the parties presently with respect to their relationship.  Neither party says that the child should not be cared for by the other.  Each of the parties concedes that the other is able to appropriately care for the child.  So to that extent, it is an issue that is not relevant to my interim determination.

19. What I am guided by is the observations of Mr C that the child is a little girl who has strong and loving and secure attachments to both of her parents.  I am satisfied that any interim orders made should ensure that those attachments are preserved. 

20. In determining parenting matters, I am required to have regard to the objects and principles set out in Part VII of the Family Law Act1975 (Cth) (“the Act”). I have regard to what the Full Court said in Goode & Goode [2006] FamCA 1346;(2006) FLC 93-286 as to the way in which I am required to determine interim parenting matters. I must have regard to the parties’ competing proposals, which I have identified. I must identify the issues in dispute. I must take into account the matters relevant pursuant to s 60CC of the Act. There is no challenge to the presumption of equal shared parental responsibility in this matter and, as a consequence, I must have regard to whether or not equal or significant and substantial time should be provided.

21. The proposals of the father, in my mind, do not provide the opportunity for the child to have an ongoing and meaningful relationship with her mother.  Those proposals mean that there would be significant periods where the child does not have the opportunity to see or spend time with her mother.  In light of the evidence of Mr C, that must be an arrangement that is contrary to the child’s interests.  In contrast, the proposals that are put by the mother mean that there is never a period of more than two and a half days where the child is not able to move from one household to the other.  They are proposals that ensure that the child has opportunity of significant time, both in a weekday setting but also on a weekend, to enable her to have all of the benefits that both of her parents can provide to her.  Accordingly, the orders that I propose to make are in keeping with the orders made by Senior Registrar FitzGibbon.

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 7 June 2016.

Associate: 

Date:  7 June 2016