Klein & Farr
[2008] FMCAfam 516
•29 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KLEIN & FARR | [2008] FMCAfam 516 |
| FAMILY LAW – Parenting orders – equal shared parental responsibility – best interests of child – warm relationship with each parent – whether equal time with each parent appropriate at present – progressive increase of time with father. |
| Family Law Act 1975, ss.60, 65 |
| Applicant: | MR KLEIN |
| Respondent: | MS FARR |
| File number: | DGM 731 of 2006 |
| Judgment of: | Turner FM |
| Hearing dates: | 18 & 21 April 2008 |
| Date of last submission: | 21 April 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 29 May 2008 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Stanley |
| Solicitors for the Applicant: | Bayside Solicitors |
| Respondent: | In person |
| Solicitor for the Independent Children’s Lawyer | Ms Pandelli |
| Solicitors for the Independent Children’s Lawyer | Maria Barbayannis & Co |
ORDERS
That the parents have equal shared parental responsibility for the child [J] born in 2004 (“the child”).
That the child lives with the mother.
That the child spend time and communicate with the father as follows:
(a)As to week 1 from 3.30pm Friday until 4.00pm Monday commencing 25 April 2008.
(b)As to week 2 from 3.30pm Monday until 4.00pm Wednesday commencing 5 May 2008.
That the child spend additional time with the father as follows:
(a)During school terms holidays in June and September 2008 for four consecutive days as agreed between the parties and in default of agreement from 10.00am the Saturday following the last day of school until 10.00am the following Wednesday.
(b)During the long summer vacation in 2008/2009 on alternate weeks from 10.00am Saturday until 10.00am the following Saturday.
(c)During school holidays thereafter for half of such holidays as agreed between the parties and in default of agreement during the first half.
(d)On Father’s Day from 5.00pm on the Saturday preceding Father’s Day until 6.00pm Father’s Day.
(e)During the Christmas festival as follows:
(i)
In 2008 and each alternate year thereafter from 4.00pm
24 December until 3.00pm 25 December.
(ii)
In 2009 and each alternate year thereafter from 3.00pm
25 December until 4.00pm 26 December.
(f)Such further and other times as agreed between the parties.
That the Father’s time with the child be suspended as follows:
(a)From 5.00pm on the Saturday preceding Mother’s Day until 6.00pm Mother’s Day.
(b)During the Christmas festival as follows:
(i)
In 2008 and each alternate year thereafter from 3.00pm
25 December until 4.00pm 26 December.
(ii)
In 2009 and each alternate year thereafter 4.00pm
24 December until 3.00pm 25 December.
That the child communicates via telephone with the father at all reasonable times with the mother to facilitate and encourage such communication.
That for the purposes of changeover the child be collected and delivered to and from school or kindergarten where appropriate or otherwise the father shall collect and deliver the child from the mother’s premises.
That the parties are restrained by injunction:
(a)From denigrating the other within the presence or hearing of the child.
(b)From removing the child’s principal place of residence from the Melbourne metropolitan area without the prior written consent of the other party.
That the mother and father notify the other as soon as practicable of any illness or injury or condition requiring medical attention and the details of such attention.
That upon the child attending school the father will deliver the child to school at the conclusion of his time in accordance with order 4(a) and 4(b) herein.
There be no restriction on Ms R being present when the child is spending time with his father.
AND THE COURT NOTES THAT:
Pursuant to s.65DA(2), 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 Attachment A hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Klein & Farr is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
DGM 731 of 2006
| MR KLEIN |
Applicant
And
| MS FARR |
Respondent
REASONS FOR JUDGMENT
This is an application by the father of [J] (born
in October 2004) that [J] spend time with him, and that he have equal shared responsibility for [J].
The mother opposes [J] spending any time with the father.
The parties commenced living together in late 2003 and separated in June 2005.
Interim Orders were made by this Court on 16 April 2007 that:
a)[J] live with his father from 5.00pm Fridays until 6.00pm Sundays commencing 20 April 2007 and weekly thereafter and with the mother at all other times.
b)Changeover take place at [O] Police Station.
By application filed on 9 November 2006 and amended applications filed on 28 March 2007 and 17 April 2008, the father seeks equal shared parental responsibility for [J] and that [J] spend additional time with him.
In determining the matter the paramount consideration is “what is in the best interests of [J]” (s.60CA of the Family Law Act 1975 (“the Act”)).
The factors in s.60CC are to be considered by the Court in determining what is in [J]’s best interests.
The primary considerations are set out in s.60CC(2). They are:
a)The benefit of the child having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm or being subject to or exposed to abuse, neglect or family violence.
As to (a), the Court is satisfied that it is in [J]’s best interests to have a meaningful relationship with both of his parents. There is nothing in the material before the Court to indicate that this is not so.
As to (b), there is no evidence that [J] has been subjected to harm, abuse, neglect or family violence while spending time with his father, or mother.
Additional considerations are set out in s.60CC(3). The Court deals with each consideration.
(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.
[J] is three years old and there is no material before the Court as to views expressed by him about his wishes.
(b) The nature of the relationship of the child with each of the child's parents and other persons (including any grandparent or other relative of the child).
The Court has no doubt that [J] enjoys a warm relationship with each of his parents.
Mr Holland observed in his Family Report dated 27 February 2008 that “there was an affectionate greeting between [J] and his father” and that “[J] looked happy and relaxed in his father’s company” and “it appears there is more familiarity and a stronger bond between the two than on previous occasions” (paragraph 25). The father displayed a “warm and responsive parenting style” (paragraph 26) and “[J] clearly enjoys the company of his father” and “it is apparent that the bond between [them] is growing stronger” (paragraph 27). [J] “has an obvious warm rapport with his father” and “showed no signs of separations, anxiety or distress when leaving his mother or returning after observation” (paragraph 37) and “appears to be developing a close bond with
Mr Klein” (paragraph 39).
No one suggests that [J] does not have a good relationship with his mother. [J] also has a good relationship with his maternal grandmother who has supervised changeover of [J] and has been the liaison person between the parents.
(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 father is willing and able to facilitate a close and continuing relationship between [J] and his mother, and proposes that [J] live with his mother. [J]’s mother, on the other hand, opposes [J] spending any time with his father. If [J] is to spend any time with his father, now or in the foreseeable future, a Court order will be necessary.
(d) The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents, or any other child or other person including any grandparent or other relative of the child with whom he or she has been living.
From Mr Holland’s observations, [J] enjoys spending time with his father. This offsets any sorrow [J] may have when he is not with his mother.
(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.
It is proposed by the father that he will collect and return [J] to the mother’s house or to school. Telephone contact can be maintained.
No issue arises under this factor.
(f) The capacity of each of the child's parents and 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.
The Court heard evidence from the father’s partner Ms R, that she enjoys a good relationship with [J], although she says that the main responsibility for looking after [J] when he is spending time with his father, lies with his father. There is no evidence that the father does not have the capacity to provide for [J]’s needs.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents.
No relevant issue arises for consideration. Although [J] is young, it is apparent that he enjoys a good relationship with both of his parents. His age is therefore not a consideration. As an alcoholic and gambler, the father’s lifestyle would have been an issue. However, he has successfully taken action to overcome both these conditions.
Subparagraph (h) “Aboriginal child or Torres Strait Islander child”. This factor is not relevant.
The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents.
The Court is satisfied that both parents satisfy this test.
(j) Any family violence involving the child or a member of the child's family.
There is no evidence of family violence involving [J] or a member of his family.
(k) Any family violence order that applies to the child or a member of the child's family, if the order is a final order or the making of the order was contested by a person.
No family violence order has been made against the father.
(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 will make orders according to the Minute of Orders drawn up by the father’s solicitor and by the independent children’s lawyer.
Those minutes were provided to the mother for comment, but apart from general opposition to them, she did not deal with them in detail. The Court considers those orders to be the best interests of [J] and to be least likely to lead to the institution of further proceedings.
(m) Any other fact or circumstance that the court thinks is relevant.
The mother is vehemently opposed to Ms R having any contact with [J], alleging that Ms R was prepared to allow one of her sons to be abused by her then partner without doing anything about it. The mother alleges that, as a result, the abused child has behavioural problems that could have a detrimental effect on [J]. She is also critical of Ms R not reporting such activity and worries that Ms R will not take care of [J].
The allegations were tested in evidence, and were not established.
Ms R is a teacher and has passed the required police check to enable her to teach young students. Mr Holland found that there was “no apparent reasons why Ms R should not have unsupervised contact with [J] through her relationship with the father” (paragraph 39).
By s.60CC(4) the Court must consider the extent to which each of [J]’s parents has fulfilled, or failed to fulfil their responsibilities as a parent, and the extent to which each of them has taken, or failed to take, the opportunity to participate in making decisions about major long terms issues in relation to [J], and to communicate and spend time with [J], or fulfilled or failed to fulfil their obligation to maintain [J] (our emphasis).
The evidence is that the father has paid in excess of the amount assessed for the support of [J]. He has actively sought to be involved in making decisions about [J], and has explored the possibility of enrolling [J] in [C] Child Care Centre which offers a kindergarten program. The mother on the other hand opposes [J] going to a crèche or to kindergarten. The father has taken available opportunities to communicate and spend time with [J].
By s.60CC(4A) the Court must have regard to events that have happened and circumstances that have existed since the parties separated in June 2005 (our emphasis). The father has not drunk alcohol or gambled since the parties separated. The father has consistently sought that [J] spend time with him, and his relationship with [J] is warm and becoming stronger. They are forming a close bond. There are no adverse considerations under this factor.
The Court decides that the parents should have equal shared parental responsibility for [J]. Therefore the Court must consider whether [J] spending equal time with each of his parents is in [J]’s best interests (s.65DAA(1)) (our emphasis). Spending equal time with each parent is reasonably practical, but would not be in [J]’s best interests. Having regard to the Family Report, the Court considers that it is best for [J]’s time with his father to be increased progressively from that provided in order 7 of the orders of the Court dated 16 April 2007. That order provides for [J] to live with his father from 5.00pm Friday until 6.00pm Sunday from 20 April 2007 and weekly thereafter, and with the mother at all other times.
A progressive increase in [J]’s time with his father is what is provided in the orders above. The spending of substantial and significant time with each parent is reasonably practicable. The orders provide for substantial and significant time to be spent with each parent.
In all the circumstances the Court is satisfied that the Orders proposed jointly by the father and the independent children’s lawyer, are in the best interests of [J]. The orders encapsulate the recommendations in the Family Report, and Mr Holland’s evidence. The Court makes those orders.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate:
Date: 29 May 2008
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