Lambrick & Lambrick

FAMILY COURT OF AUSTRALIA

LAMBRICK & LAMBRICK

[2009] FamCA 738

FAMILY LAW – CHILDREN – Child related proceedings – staged introduction of extension of time spent with

Family Law Act 1975 (Cth)

RESPONDENT:

Mr Lambrick

APPLICANT:

Ms Lambrick

FILE NUMBER:

NCC

2059

2007

DATE DELIVERED:

13 August 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

3 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Cook

RESPONDENT:

Mr Lambrick

Order

All prior orders in relation to the child, …, born … October 2000 (“the child”) are discharged.
The mother and the father are to have equal shared parental responsibility for the long term care, welfare and development of the child.
Each party is responsible for the child’s day to day care, welfare and development whilst the child is living with that parent pursuant to these orders.
The child spend time with the father as follows:
(a)Each alternate weekend from after school on Friday until before school on Monday, with the father to pick up and deliver the child to and from school.
(b)From 9.00 am until 5.00 pm on Father’s Day, if Father’s Day falls on a weekend when the child is spending time with the mother.
(c)From 9.00 am on the father’s birthday until 9.00 am the following day, if the child is not otherwise spending time with the father pursuant to these orders. If that day falls on a school day then the child will spend time with the father from after school on the father’s birthday until before school the following day, with the father to deliver the child to school.
(d)
Unless otherwise agreed between the parties, from 2.00 pm on

… October (the child’s birthday) and if the child is to be spending time with the mother on the following day (… October) then until 10.00 am on that day, with the child to be collected by the mother.
(e)In 2009 from 3.30 pm on Christmas Day in 2009 until 5.00 pm on Boxing Day, with the father to collect the child from the mother’s residence. In the years after 2009 the child is to be collected by the father at 3.30 pm and returned to the mother’s residence at 5.00 pm on Boxing Day.
(f)On New Year’s Eve in 2009 and thereafter in alternate years, with the father to collect the child from the mother’s residence at 2.00 pm on that day.
(g)For ten nights during the Christmas school holiday periods as identified for New South Wales Government Schools, commencing at 2.00 pm on New Year’s Eve, when the child is spending New Year’s Eve with the father pursuant to these Orders, or at 10.00 am on New Year’s Day when the child is spending New Year’s Eve with the mother, pursuant to these Orders.
(h)For one week during the school holiday periods as identified for New South Wales Government Schools for Term 1, Term 2 and Term 3 holidays as may be agreed between the parties, but to coincide with any holidays spent by the mother in Queensland and failing an agreement:
(i)in even numbered years for the first half of such holiday periods to commence on the first morning of the holidays and concluding at 5.00 pm on the day at the midway point of the holidays.
(ii)in odd numbered years for the second half of such holiday periods to commence on the midway point of the holidays and concluding at 5.00 pm on the day prior to the commencement of school.
That the child spend time with the mother otherwise and as follows:
(a)From 9.00 am until 5.00 pm on Mother’s Day, if Mother’s Day falls on a weekend when the child is spending time with the father.
(b)From 9.00 am on the mother’s birthday until 9.00 am the following day, if the child is not otherwise spending time with the mother pursuant to these orders. If that day falls on a school day then the child will spend time with the mother from after school on the mother’s birthday until before school the following day, with the mother to deliver the child to school.
(c)
Unless otherwise agreed between the parties, from 10.00 am on

… October (the day before the child’s birthday), with the child to be collected by the mother until 2.00 pm on … October (the child’s birthday), with the father to collect the child from the mother’s residence. If the child is to be living with the mother the following day (… October), then the mother will collect the child at 10.00 am on that day.
(d)On Christmas Day in 2009 until 3.30 pm, with the father to collect the child from the mother’s residence at the conclusion of that time.
(e)On New Year’s Eve in 2010 and in alternate years thereafter.
The child spend time with the mother and father at such other times as agreed between the parties.
Neither parent will use alcohol to excess or be under the influence of alcohol to excess while the child is in his or her care.
Commencing … October 2010 (the child’s tenth birthday) the child spend time with the father:
(a)In each alternate week from after school Friday to before school on Wednesday, with the father to collect the child from school on the Friday and deliver the child to school on the following Wednesday morning.
At any time changeovers do not occur at the beginning or end of a school day or unless otherwise specified in these Orders, the father is to collect the child from the mother’s residence at the commencement of the time he is to spend with her, and the mother is to collect the child from the father’s residence at the conclusion of such time.
Each parent will encourage the child to communicate by telephone with the other parent at reasonable times during any period the child is living with or spending time with that parent.
In the event that the child is ill, requires medical attention or medication or injured is admitted or is to be admitted to hospital, the parent in whose care the child is at that time is to notify the other parent as soon as practicable and within 12 hours.
Each parent is entitled to attend all events involving the child, including but not limited to:
(a)School functions and events which allow for parental attendance, including but not limited to concerts, school assemblies, presentations, sports days, school fairs, school fundraisers, recreational events and parent and teacher interviews.
(b)Sporting functions; and
(c)Extra-curricular activities which allow for parental attendance.
The mother and the father will ensure that the child has her own room when living at their respective residences and is afforded the privacy commensurate with her age.
Each parent is at liberty to travel interstate or overseas with the child during the time that the child is in their care pursuant to these orders in addition to an additional period of up to 14 nights, provided that in relation to international travel the following conditions numbered (a) to (c) below are met:
(a)The travelling parent provide the other parent in writing and not less than two weeks prior to departure written notice of their intention notice to travel and including but not limited to;
(i)The proposed departure and return dates;
(ii)Travel arrangements and destinations; and
(iii)The particulars of the persons with whom the child is travelling.
(b)In relation to overseas travel, the travelling parent provide the other parent in writing and not less than two weeks prior to departure a final itinerary including but not limited to:
(i)The departure and return dates and times;
(ii)Travel arrangements and destinations; and
(iii)The address(s) and landline telephone number(s) for each place of accommodation.
(c)Whilst the child is overseas the parent with whom the child is travelling is to ensure that the child telephones the other parent at least once per week.
In relation to either interstate or overseas travel if the child is to travel without the parent the other parent is to be informed in writing and not less than two weeks prior to departure an itinerary including but not limited to:
(a)       The departure and return dates;
(b)       Travel destinations; and
(c)       With whom the child is travelling.
Within 7 days of the date of these Orders the father is to sign the passport application for the child and that both parties are to do all acts and things necessary to ensure that the child’s passport remains current.
The parent holding the child’s passport will make the passport available to the other parent who wishes to travel overseas with the child within 7 days of that parent’s request and upon that parent complying with Order 14, and if applicable Order 15.
If any other person over the age of 18 years, who is not a family member of that parent or of their partner is staying at their residence for more than 14 nights, and during which time the child will be in their care, then they shall inform the other parent.
Each parent is restrained from allowing the care of the child to be delegated to any person under the age of 18 years while the child is living with or spending time with either parent pursuant to these orders and during any periods in which either parent is absent to care for the child during those periods for a period in excess of 2 hours.
If the child is in the care of any person other than the mother or the father, then that person caring for the child will have all relevant contact details for both parties.
Each party is restrained from denigrating the other parent or the partner, friends of family of the other parent to the child or to any person in the presence or hearing of the child.
Neither parent is to use the child as a messenger and all communication regarding the child, financial matters or changes to contact arrangements be verbal or in writing between the parents or the parent’s legal representatives.
Neither party will undertake their employment for more than a period of 15 hours per week whilst the child is in their care.
Pursuant to Section 65DA(2) and Section 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 Lambrick and Lambrick is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCC 2059 of 2007

MR LAMBRICK

Respondent

And

MS LAMBRICK

Applicant

REASONS FOR JUDGMENT

Introduction

These are proceedings between the parties to a marriage in which they each seek orders in relation to the parenting of their eight year old daughter.
During the course of the hearing many of the issues that had been raised were agreed between the parties and the issue the Court was asked to determine was the amount of time that the child should spend with her father during term time.
The father, after initially seeking 7 days out of each 14, finally sought 5 days out of the each 14.
The mother, seeking initially 1 night per fortnight on trial sought 3 nights per fortnight as recommended by the Family Consultant, on the basis that the child will spend time with the father each alternate weekend from Friday to Monday with the child to be picked up from and delivered to her school.
Early in the proceedings the parties agreed and I was invited to make by consent orders reflecting the following terms of settlement namely:
1.Parties have shared parental responsibility for their daughter […] (date of birth […] October 2000).
2.Father’s Day, Mother’s Day and parents’ birthdays to be spent with the relevant parent.
3.Christmas morning to be spent with the mother until 3.30 pm in 2009, then to be picked up by father to be returned by father on Boxing Day.
4.After 2009 the father to have contact from 3.00 pm on Christmas Day until Boxing Day.
5.Father and mother to have alternate New Year’s Eve, with father to have New Year’s Eve in 2009 with father to pick up [the child] at 2.00 pm.
6.Father to have 10 nights contact at the Christmas vacation beginning on New Year’s Eve when [the child] spends New Year’s Eve with the father and on New Year’s Day when [the child] spends New Year’s Eve with her mother.
7.Father to have one week contact on short vacations, week to be agreed between parties but to co-incide with any holidays spent by mother in Queensland.
8.Both parties to abstain from excessive use of alcohol while [the child] is in his/her care.
There remained certain other orders which the father sought and to which the mother agreed, some with variations to which the father agreed.
It was proposed by the father and agreed to by the mother in the witness box that the parties should provide in the orders that he might spend time with the child at other times as agreed.
The father produced a schedule of other orders he sought and the wife in the witness box confirmed her acceptance of orders being made to the following effect in relation to specific issues, namely:
1.At any time that changeover does not occur at the beginning or end of a school day the father is to collect the child at the commencement of spending time from the mother’s residence and the mother is to collect the child from the father’s residence at the conclusion of such time.
2.Both parents will not denigrate the other parent, or the partner, friends or family of the other parent.
3.Each parent is to be responsible for the day to day care of the child whilst the child is in their care.
4.Neither parent is to use the child as a messenger in any way. All communication regarding the child, financial matters or changes to contact to be verbal or in writing between the parents or the parents’ legal representatives only.
5.The child and her parents are free to contact each other by phone at reasonable times.
6.If the child requires medical attention or medication or is injured, the parent the child is with will inform the other parent as soon as practicable and within 12 hours.
7.Both parents will ensure that the child has her own room when living in their residence and that she is afforded the privacy commensurate with her age.
8.(a) Each parent is at liberty to travel with the child interstate or internationally during the time that the child is in their care and for one additional period each year of up to 14 nights providing that when travelling internationally the conditions as set out in (c) and (d) below are met
(b)The non travelling parent is to be informed within 14 days of travel the child’s proposed departure and return dates and the destination and particulars of with whom the child is travelling.
(c)Specifically in relation to international travel the travelling parent provides the other with 2 weeks written notice of his/her intention to travel (previously proposed by the father as six weeks but subsequently agreed at two weeks) with such notice to include but not be limited to details of the proposed departure and return dates, travel arrangements and all destinations and particulars of with whom the child is travelling.
(d)The travelling parent will provide to the non-travelling parent 2 weeks notice in writing (originally proposed by the husband as 21 days and subsequently agreed at 14 days) of final itinerary including but not limited to departure and return dates and times, travel arrangements, all destinations and contact details of where the child can be contacted throughout the period of travel.
(e)That the travelling parent is to ensure the child telephones the other parent at least once per week whilst they are travelling overseas.
9.(a) Both parties agree to sign all documents to ensure the child’s passport remains current and the father agrees to sign the child’s current passport application within days of these orders being made.
(b)The parent holding the child’s passport will make the passport available to the travelling parent within 7 days of them requesting it and upon complying with Order 8(c).
9.That both parents agree to inform the other if any person over 18 years who is not family member of theirs or of their partner will be staying at their residence for more than 14 nights.
10.The father is to ensure that he is to be the child’s primary carer whilst the child is spending time with him and is hereby restrained from allowing the care of the child to be delegated to any person under the age of 18 during any period of absence. It was originally proposed by the father that the age limit of the babysitter should be 16 but when the mother proposed an adult, he agreed.
11.That if the child is in the care of any person other than the parent, the person caring for the child will have all relevant contact details for both parents.
12.It is noted that each party will not undertake their employment for more than a period of 15 hours per week whilst the child is in their care.
As set out above I was asked to make orders to the effect of consents thereby indicated in Exhibit 1 and Exhibit 2. In drafting those orders I have added matters of definition so that the orders may be certain in their meaning. I have done so because it is in the interests of this child that there be predictability and certainty. I have sought to maintain, notwithstanding that definition, the integrity of the consent given. I have also done so by way of definition and in order to give clarity to the wording.

The Remaining issues

The issues remaining are what amount of time the child is to spend with her father during school term time.

Background Facts

Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
The child the subject of the dispute between the parties was born in October 2000 and is presently aged 8 years and 9 months.
The child is the child of the mother, Ms Lambrick, who was born in 1965 and the father, Mr Lambrick, who was born in 1964.
The child had a sibling, a brother, born in June 1999 who passed away as a result of leukaemia in June 2004.
The parties began cohabiting in 1997 and married in December 1997 and separated on a final basis in January 2006.
The mother lives in B with the child and her maternal grandparents.
The mother is in a relationship with Mr M who resides at U with his son, N.
The mother works outside the home as a casual public servant and her hours of work vary but are presently about 15 hours per week.
The hours of work of the mother are said to be predominately in school hours but she has the assistance of her parents in caring for the child outside school hours if required.
The respondent father lives with his partner, Ms R, in B. Also residing in the same residence are Ms R’s children C and H, their ages are 15 years and 12 years respectively.
The father is self-employed as a tradesman. He has had a period off work by reason of the necessity for him to undergo a hip replacement operation. He is returning to work. He can however work flexible hours to enable him to spend time with the child when she is living with him.
The distance between the residence of the mother and the father is a kilometre approximately.
Since separation the child has lived with her mother and until January 2008 spent only day time with her father.
On 30 January 2008 the current interim orders were made which provide for the child to live with the mother and spend time with the father each alternate weekend from 10.00 am Saturday until 5.00 pm Sunday and in the other week on Thursday from 3.30 pm until 7.00 pm.

The mother proposes that the times for the child to spend time with the father be changed from the present arrangement to one in which the child spends from Friday after school to Monday before school with the father on each alternate weekend.
As indicated on hearing the father sought a proposal initially different to that proposed by the mother but during the latter part of the hearing proposed that his daughter live with him as proposed by the mother with a phasing in of extra time after a period of three to six months.
Although the Family Consultant in her Family Report adumbrated issues of violence and alcohol abuse I was not satisfied on the evidence that there was any current evidence of alcohol abuse. The mother in any event was prepared to make the changes she proposed notwithstanding her earlier allegations. It is noted that the orders consented to require that neither parent engage in excessive use of alcohol whilst the child is in their care.
The father denied that there was any violence on his part. He did not impress as being other than blunt and it may be that his language is intimidating. He is accepted by the wife as appropriate to care for the child at least during the times that she has agreed to and proposes. The father admitted that at the time of the separation and shortly after the parties’ son’s death he was misusing alcohol, saying that at that time he had lost his son and his marriage and was prevented from seeing his daughter as he would wish. He says that his life was now in order and he no longer has a problem with alcohol. He gave a detailed account of his present drinking and it seemed to be within reasonable limits. There is no complaint that he has breached the order not to consume alcohol to excess since it was made on 30 January 2008.
The father for his part made no complaint as to the adequacy of the mother’s care of the child, save for problems which arose in their dealing with each other. Without fully canvassing those problems they included absence of information from the child’s school (a problem now solved by the father procuring his own information from the school) and an artificiality of conduct between himself and the mother or her mother at handovers of the child. This problem also seems to be solving itself.
In the past the father has not taken the opportunity to participate in decision making in relation to the child but that has, it seems been reflective of a number of factors which no longer pose problems.
I say that because it is clear that the parties are now able to come to agreements on a wide variety of matters and I see what they have done as boding well for a significant improvement in their relationship. Each of them has been warned of the need to remain child focussed in their dealings with each other and not create a climate of discord between two people each of whom their child loves. Such discord will only operate to the detriment of the child’s optimal development.
It seems to me that in the father’s revised proposals for the child and the development of the agreement with the mother there is an increasing focus by him on the child and her needs, perhaps to the subordination of his own and for that he needs to be congratulated as does the mother for her search for agreement on so many matters and her willingness to so agree.
The child has it appears a comfortable relationship with each of the parents, although to some extent affected adversely by the mother’s negativity in the past about the father. It is noted that it has been drawn to her attention that such an approach can only cause distress to her daughter who loves both her mother and father. I accept in the climate of agreement which has been reached that negativity will be rightly confined to the dustbins of history.
Equally the tones of some of the father’s communications with the mother have been less than praiseworthy and I hope he has heard and learnt of the dangers that negativity about parents can provide for a child.
The child is assessed by the Family Consultant as presenting as an emotionally and socially well adjusted child and no concerns have been identified relating to her developmental status. This she reports is particularly pleasing since she has already had a major loss with the death of her brother. The mother and her parents have been described by the Family Consultant as having the ability to engage in appropriate and emotionally responsive care giving to the child.
The Family Consultant describes the problems of communication and

co-operation between the parties as a key issue. Each of them in the past seemed somewhat unproductively to blame the other. The situation however seems to have improved of more recent times and certainly on the matters referred to above they were prepared to act co-operatively with each other.
That conduct ameliorates in my view the caveats placed on shared parenting arrangements by the Family Consultant. In her report she states (footnotes omitted, emphasis added):
“… a shared care arrangement is not appropriate as research has shown that “high, ongoing inter-parental conflict” and “shared care” are independent predictors of poorer outcomes for children (particularly those under ten years of age), resulting in children’s high emotional distress and poor mental health outcomes.”
The prospect for the future parenting of the child by each of her parents which has started under a cloud of concern now has the brighter possibility of being undertaken in a way in which each of the parents can contribute to the best of their ability to the development of this child’s full potential. However, having said that, it is deeds which ultimately will be the measure of these parents capacity to be child-focussed in parenting the child, and not words.
I have come to the conclusion that the mother’s proposal for the child to spend time with the father is presently appropriate, a conclusion with which the father is prepared to agree. He seeks however that it be a base from which there can grow arrangements for him to spend further time with his daughter and contribute more to her education. I certainly hope that it will be but, in the exercise of caution and to allow the co-operative approach of these parents to grow and develop and because of the past conflict, I propose that that extension will commence consistent with the Family Consultant’s report from the child’s tenth birthday.

Relevant Law

Legal principles

The principles governing this case are set out in the Family Law Act 1975 (“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child's best interests, I must consider certain matters under section 60CC. Those matters are the “primary considerations” and the “additional considerations” set out in that section.
I am required to 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 child's best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the child and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
“… 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.”
Subsection (4) provides as follows:
“… 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.”
Section 65DAA requires me to consider the child spending equal time or substantial and significant time with each parent, where the court is proposing to make an order that the child’s parents are to have equal shared parental responsibility.

Section 60CC Considerations

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

The parties agreed that this child will benefit from having a meaningful relationship with each of her parents. Although in the past there was concern that the mother would not so agree, in oral evidence under cross examination it appeared that she did agree that it was important for the child to have a close relationship with each of her parents and I agree with her.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There is no evidence that this child has been exposed to physical harm or abuse or neglect or family violence.
There is evidence that the child has been exposed to antipathy between the parents and is at risk of psychological harm in the past climate of conflict between them.
A Family Report was prepared, dated 23 February 2009, and made available to the Court. The child enquired of the reporter whether if she lived with her father she would still see her mother. The report writer notes:
48.[The child] knows that the parents don’t like each other because “they don’t talk” and “they have a little bit of an argument with each other”. She stated that they argued about “where I want to stay”. She said she feels like the parents are fighting because of her and this makes her feel “a bit worried”.
49.[The child] then cited, without prompting, concerns in the father’s house such as “[Ms R’s] a bit bossy she tries to take over”, “dad just sits out in the garage or with his mates on the lounge”, and “my room is used as the spare room.” She stated that she gets along well with [H] and [C], but that she has “a little bit of an argument sometimes with [H]”. [The child] also spoke about engaging in enjoyable activities with the father and Ms [R] such as attending [the local] swimming pool.

Additional considerations

(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

In the Family Report dated 23 February 2009, the Family Consultant wrote:
50.[The child] expressed views about the parenting arrangements are “I want to live with mum and my bunny, […], I don’t want to leave” and “I like it the way it is, but I would like to sleep over on Sunday and go home earlier”. She stated that she wished to go home earlier “because it is a bit lonely, I lock myself in the room and I don’t have anyone to play with”. She also stated, “I think I might be missing out on fun stuff with mum”. [The child] also reported feeling worried that if, “I stayed there more, he might want me to live there”.
51.[The child’s] advice to her parents is to “be friends and just try to get along” and “Dad to quit smoking”.
52.[The child’s] views are developmentally appropriate and appear to reflect her strong relationship with the mother and her own experience of each of the parents (including differing parenting styles and attention levels). [The child’s] views have probably been influenced to some extent by the mother’s negative perspective of the father, and by [the child’s] own concerns that the father is seeking that she live with him.
53.Significant consideration should be given to [the child’s] experience of each of the parents, however, due to her relatively young age and the influence of both parents on her views, her views should not be given significant weight at this time.
I agree with the Family Consultant that this child’s views are very likely to be the product of the conflict hitherto between her parents and I do not attach great weight to them, save to say that they are demonstrative of a situation which, with good parenting, should never happen.
(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)
The child was observed by the Family Consultant to be very relaxed in the company of the mother and the mother’s partner and the maternal grandparents. The Family Consultant wrote that:
54.… [The child] engaged predominantly with the mother, although she clearly enjoyed the attention she received from all present. [The child] appeared to have a mutually loving and caring relationship with the [sic] all of the maternal family and a warm and comfortable relationship with the mother’s partner. No concerns were noted in the session.
55.[The child] separated from the mother without any observed issues to spend time with the father. She gave the father a kiss at his request and immediately appeared to be comfortable in his company. She stated “where is [C] and [H]?” When the father’s partner and the [sic] [C] and [H] entered the room [the child] said hello to them. They all engaged in light hearted play together and it appeared to be a very warm relationship between each of them and [the child]. [The child] separated from the father without distress and gave the father, the father’s partner and [C] a kiss goodbye. [H] waved. No concerns were noted in the session.
The father’s new partner Ms R reported:
58.Ms [R] reported that [the child] gets on well with [H] and [C] [children of Ms R: H aged 12; C aged 15] but [C] does not generally engage with [the child] as he is “only generally interested in himself”. Ms [R] said that [H] understands [the child’s] experience and “goes to great lengths to make sure she is not left out”.
…
60.The mother’s partner, Mr [M] (b. […]1959), has two children from a previous relationship; [N] (b.[…]1989) now aged 19 years and [K] (b.[…].1991), now aged 17 years. [N] lives with Mr [M] and [K] lives with her mother. Mr [M] reports a flexible and amicable parenting arrangement with his ex-wife, including an initial period where the children remained in the marital home and the parents moved in and out of the home on a week about basis. This arrangement concluded when Mr [M’s] ex-wife repartnered. The children now spend time with each parent in accordance with their wishes and their academic and sporting commitments.
It is asserted by the mother that the father has misused alcohol and the father has asserted that the mother at times had misused alcohol. I accept the evidence of both of them as to that use by the other of alcohol inappropriately. I do not believe however that given the Orders I make by consent that the abuse of alcohol, which has been part of the past history of these parties has continued or will continue. It seemed clear that the father did have a significant problem following the death of his son from leukaemia and the failure of his marriage but that he has since amended his habits.
It is interesting to note that despite the conflict which existed between the parents, by mutual report the child is currently flourishing in all aspects of her life. The final recommendation of the Consultant was:
77.It is recommended that the parties have shared parental responsibility for decisions regarding the subject child.
78.It is recommended that the child live with the mother spend time with the father on each alternate weekend from after school on Friday until before school on Monday.
79.Additional time is recommended during holidays and on special occasions.
80.Regular and flexible telephone contact should occur between [the child] and the father.
The Family Consultant was not required for cross-examination by either party.
(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
There certainly has been difficulty in communication between these parties in the past. It is now said by each of them to have improved. I think these proceedings have had an educative effect on the parties and I am encouraged by the degree to which they have been able to agree in the interest of their child and in the reduction of conflict.
Whilst there may well be a caveat I believe that the parents are moving forward to a position where they can facilitate and encourage a close and continuing relationship between the child and the other parent.
An unreasonable failure to do so would strongly indicate that the parties so acting was not capable of properly parenting their child.
(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 recommendation of the Family Consultant as to each alternate weekend from after school on Friday to before school on Monday was agreed to by the father subject to there being an extension of that time.
Given what has been said by the Family Consultant and the caveats that she has imposed on too dramatic a change it is my view that the recommendation presently made should be the adopted course for the child until such time as she achieves her tenth birthday.
I think from that time she will be of sufficient age to accommodate an expansion of the time from the three days at present to a period of five days in each fortnight commencing on the Friday and proceeding to the following Wednesday morning each alternate week.
In making these orders and commencing them in a staged fashion the ability of the child to cope with change will not be unduly taxed.
(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
There is no practical difficulty or expense associated with the child spending time with and communicating with each parent such as will substantially affect her right to maintain personal relationships 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
Given the report of the Family Consultant and her perceptions of the child in the care of each of the parents, it seems that neither of them has inability to provide for the emotional needs of the child.
The father seeks the ability to have input into his daughter’s school life to a greater degree, although it is interesting to note that the mother said there was no prohibition in her mind on the father attending school sports and other significant days given that the child under the initial order that I propose to make will have the opportunity of being with her father after school on Friday. The father will have some ability to make an input in her educational life when coupled with other involvement in her life. That of course will expand when the child attains the age of ten years.
(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
It seems to me on the evidence that each of the parents had a lifestyle which perhaps, with its former misuse of alcohol, does not provide for this child a great exemplar. Nevertheless it seems to me on the evidence that there has been improvement in that situation. Hopefully it will continue and the parties will come to a mature realisation that parenting involves focus on matters relevant to the child in priority to matters relevant to themselves.

The father in his case tendered a number of photographs of the child at his home previously spanning a number of years. The photographs show a happy and obviously delightful little child. Proper parenting will allow her to remain happy and delightful.
(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
This child is not an Aboriginal or Torres Strait Islander child.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Extensive cross-examination was undertaken in relation to the failure of the father to honour his obligations for the payment of child support and there was some $1,600 said to be currently outstanding.
The father said that he had made arrangements for payment of arrears at the rate of $50 a week in addition to the current order. The father was not able to give details of the assessment and all his evidence on this point was in my view unsatisfactory. I find that he has failed to meet his obligations under the child support scheme. He proclaimed that he understood the need to support his daughter but he needs to give real substance to those words so that they are reflected in deeds not simply empty rhetoric.
Having said that, it is not suggested that the father has not made payments for the support of his daughter and it is noted that of recent times he has been unable to work by reason of the effect of a hip replacement operation.
(j)any family violence involving the child or a member of the child’s family
There are some assertions about violent language and petulant behaviour and neither the father nor the mother can claim credit for their conduct. Neither can it seems the mother’s new partner. Again, what they all need to realise is that every time they become aggressive towards each other they are hurting this child and it must cease. I have reasonable grounds to believe that it will.
(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
There is no evidence of any such order.
(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
I propose making an order which should in the absence of other agreement regulate the parties’ relationships with the child through to the commencement of high school at least; possibly until the second year of high school.
By that time the child will, no doubt as many teenagers do, be seeking to pursue her own muse and autonomy and her wishes in relation to what is to happen should be given appropriate additional weight at that time. Given the former history of conflict in this matter I cannot frame an order which would give any guarantees that further proceedings in relation to the child might not commence but I hope that these parties, having regard to their experience in these proceedings, will see the value in future on resolving any difficulties they might have by seeking mediation in aid of such resolution.

Section 60CC(4) & (4A)

I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters.

Balancing of all considerations under Section 60CC and the defined issues

Balancing the matters set out in section 60CC and the evidence recited in these reasons I conclude that the orders I propose will operate to foster the best interests of this child for the reasons specified above.

Section 61DA

This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the child’s best interests for their parents to have equal shared parental responsibility for the child.
The presumption does not apply where there has been family violence. In this case there has been family violence as has been set out earlier.
Notwithstanding that there may have been family violence it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the child.
The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the child’s best interests.
In this case neither parent seeks other than an order jointly allocating parental responsibility and I find that is appropriate in this case.

Section 65DAA

This section requires me to consider making an order for equal shared time for the child with each parent where it is proposed to make an order for equal shared parental responsibility.
The order I propose to make will afford the father substantial time with the child. Given her age and the history of this matter I decline at this time to agree with the father’s proposals but I believe in all the circumstances and given the course on which the parties are now embarked that it is appropriate for that time to be extended when the child is older and I find that order to be in her interests.

The Orders to be made

I therefore propose to make the orders in relation to parenting as set forth above.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate:

Date: 13 August 2009

[2009] FamCA 738

13 August 2009

Key Legal Topics

Areas of Law

Civil Procedure

Equity & Trusts

Legal Concepts

Constructive Trust

Fiduciary Duty

Reliance

Restitution