Landis and Landis
[2011] FMCAfam 490
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LANDIS & LANDIS | [2011] FMCAfam 490 |
| FAMILY LAW – Children – parenting – interim orders – variation of orders – best interests of the child – whether mother should spend time with child overnight – equal shared parental responsibility – whether appropriate in the circumstances. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 61DB, 65DAA |
| Landis & Landis [2010] FMCAfam 1283 Goode & Goode [2006] FamCA 1346; (2006) 36 FamLR 422; FLC 93-286 |
| Applicant: | MS LANDIS |
| Respondent: | MR LANDIS |
| File Number: | SYC 4810 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 18 May 2011 |
| Date of Last Submission: | 18 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 20 May 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Graves |
| Solicitors for the Applicant: | David H. Cohen |
| The Respondent: | In person |
| Counsel for the Respondent: | Ms Stolier |
| Solicitors for the Respondent: | Brian Samuel & Associates |
ORDERS UNTIL FURTHER ORDER
Orders 3, 5 and 6 made on 23 November 2010 are vacated.
The father is to have sole parental responsibility for the child X born (omitted) 2009.
The mother is to have responsibility for all day to day matters relating to the child X whilst the child is in her care as provided by these Orders.
The child X is to spend time with the mother:
(a)From 8:30 am every Monday until 5:30 pm on Tuesday; and
(b)From 8:30 am until 5:30 pm each Friday.
For the purposes of Order (4) above the father will deliver the child to the mother in the foyer of the (omitted) Police Station and the mother will return the child to the care of the father in the foyer of the (omitted) Police Station.
The parties are to notify each other of any serious illness, injury or medical emergency in respect of the child X as soon as reasonably possible.
Neither party is to use any physical discipline on the child or permit any other person to do so.
The parties are to attend upon a Family Consultant at such times and places as they may be required for the purposes of preparation of a family report under the provisions of section 62G of the Family Law Act 1975 such report to cover all matters relating to the care, welfare and development of the child including but not limited to:
(a)The nature of the relationship of the child with each of her parents and any other significant persons;
(b)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;
(c)The likely effect of any change in the child’s circumstances;
(d)The capacity of each of the child’s parents and any other person to provide for the needs of the child including any issues relating to mental health; and
(e)Any other matters considered by the Family consultant to be relevant to the care, welfare and development of the child.
The application is adjourned to 31 August 2011 for further mention at 10:00 am.
THE COURT NOTES THAT the mother will require the assistance of an interpreter in the (country omitted) language for the purposes of the interviews with the Family Consultant and for the further mention of the application on 31 August 2011.
IT IS NOTED that publication of this judgment under the pseudonym Landis & Landis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4810 of 2010
| MS LANDIS |
Applicant
And
| MR LANDIS |
Respondent
REASONS FOR JUDGMENT
Application
This is an application to vary interim parenting orders made on 23rd November 2010. The orders relate to the parties’ baby daughter X, who was born on (omitted) 2009. X has been living with the father since the parties separated in June 2010.
The substantive application was listed for final hearing from 18th to 20th May 2011 but, due to the unavailability of a Family Report, the parties have agreed that the matter should be adjourned for final hearing later in the year.
The parties are to be interviewed by a Family Consultant in July and a Family Report can be available by the end of August. The father has a daughter named A from his previous marriage who is currently living with him on a full-time basis, due to the serious illness of her mother. It is likely that A will be required for the purposes of the preparation of the family report.
The application will be mentioned on 31st August 2011, when it is anticipated that the Family Report will be available. The mother, who is of (country omitted) background, speaks English but it would be desirable for her to have the assistance of an interpreter in the (country omitted) language for the purposes of the interviews for the family report and for the further mention on 31st August.
Background
The parties first met in (country omitted) in July 2007 and were married in (country omitted) on 12th May 2008. The father sponsored the mother to emigrate to Australia.
There is one child of the marriage, X, who was born on (omitted) 2009. She has been living in the care of the father since the parties separated in June 2010.
The parties’ separation followed a volatile relationship between them, to the extent that the father has deposed that the mother flies into uncontrollable rages and has used violence upon him. He has expressed concerns about her mental state, expressing the view that she suffers from borderline personality disorder.
The father remains living with the child in the former matrimonial home. His daughter A, X’s half sister, now lives with him on a full time basis. She was spending time with the father on Wednesday nights, alternate weekends and during school holidays, but since her mother has become seriously ill she has been living with the father. A is ten years of age.[1]
[1] Affidavit of Mr Landis 29.4.2011 at paragraph [7]
On 23rd November 2010, after an interim hearing, orders were made that the child should remain living with the father and spend time with the father, initially for three half days each week and then, from 28th February 2011, each Monday, Wednesday and Friday from 8:30 am to 5:30 pm (see Landis & Landis & Anor[2]).
[2] [2010] FMCAfam 1283
The mother has deposed in her affidavit sworn 13th May 2011 that she is now a permanent resident of Australia.[3] She has completed a university degree and has obtained part-time employment.[4]
[3] Affidavit of Ms Landis 13.5.2011 at [101]
[4] Ibid at [100]
The mother was living in a women’s refuge but, through the auspices of the refuge, has obtained the use of a two bedroom home unit in (omitted). The child has her own room there.[5]
[5] Ibid at [97] and [99]
The Court has been informed by counsel for the mother that she is not permitted by the Refuge to disclose the exact address of the home unit. Her ability to remain living there will be reviewed within six months.
The mother has spent time with the child in accordance with the Orders of 23rd November 2010, although the parties’ relationship remains one with a high level of conflict and a low level of communication.
Orders Sought
The mother seeks a variation to the interim orders to provide for the child to spend some time with her overnight, initially two nights a fortnight and then, from 20th June, four nights a fortnight. The proposal, contained in a Minute prepared by her counsel, is that:
a)The child would spend from Monday morning until Wednesday afternoon in the first week with the mother;
b)Every Friday with the mother, as is the case now;
c)Mondays, Wednesdays and Fridays with the mother as is currently the case until, from and after 20th June, the child would spend from Monday morning until Wednesday afternoon with her.
The mother also seeks orders that:
a)All changeovers be in the foyer of the (omitted) Police Station;
b)The parties should notify each other of any change of address or telephone number except that the mother should be at liberty to withhold details of her residential address; and
c)The parties should notify each other of any serious illness, injury or medical emergency relating to the child.
The father opposes these proposed orders. He seeks orders that:
a)Changeovers should be at the residence of each party;
b)Neither party is to physically discipline the child; and
c)The parties should notify each other of any serious illness, injury or medical emergency relating to the child.
The Independent Children’s Lawyer is not opposed to an increase of the mother’s time with the child to include overnight time, but takes a more conservative approach than that taken by the mother. The proposal by the Independent Children’s Lawyer is that the child should spend two nights a fortnight in the care of the mother, being the Monday and Tuesday nights of the first week. The arrangement for the second week would remain unchanged.
The Independent Children’s Lawyer supports the father’s proposed order restraining the parties from physically disciplining the child and the mother’s proposed orders relating to change of address and changeover taking place at the (omitted) Police Station.
Agreed Matters
The parties all agree that there should be a Family Report and I propose to make that order.
They also agree that the mother and father should notify each other about any serious illness or injury or any medical emergency affecting the child. This, too, seems to be a useful order and I propose to make that order, also.
Submissions
Counsel for the mother submitted that it was appropriate for the mother to commence spending overnight time with X. Such a proposal would be in line with the recommendation of the Family Consultant made on 14th September 2010:
This need for constancy and stability as well as establishing a means for X to be able to gradually re-familiarise herself with her mother, will be important for X in any interim Court decision.[6]
[6] Family Consultant Memorandum to court 14.9.2010 page 3
The father opposes this proposal, as he questions the mother’s mental stability and her ability to care for the child.
The Independent Children’s Lawyer is not persuaded that there is evidence of an unacceptable risk to the child if she remains in the care of the mother overnight, but considers that the mother is seeking too great a change. The ICL proposes two nights each fortnight, and the reason why they are sought to be consecutive nights is to allow X to get used to spending time with her mother overnight.
Counsel for the Independent Children’s Lawyer told the Court that the child was in a critical development stage where constancy of attachment figures is important. That constancy has been provided by the father up till now.
The Relevant Law
Section 60CA of the Family Law Act 1975 provides that, in deciding whether to make a parenting order, the Court must regard the best interests of the child as the paramount consideration. To determine what is in the child’s best interests, the Court must consider the matters set out in subsections 60CC(2) and 60CC(3). The Court must also have regard to the matters in subsections 60CC(4) and (4A).
I have considered all of those matters.
When making a parenting order, the court is required by subsection 61DA(1) of the Act to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility (see Goode & Goode[7]). When the Court is making an interim order the presumption applies unless the Court considers that it would not be appropriate in the circumstances (s. 61DA(3)).
[7] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
When making a final parenting order, the Court is required by s. 61DB to disregard the allocation of parental responsibility made in the interim order.
Where a parenting order provides that a child’s parents are to have equal shared parental responsibility, the Court is required by s. 65DAA to consider spending equal time with each parent or, if this is not reasonably practicable or in the child’s best interests, substantial and significant time with each parent.
I have given consideration to all of those matters.
Conclusions
These are interim orders. The Court will make final parenting orders after it has the benefit of a family report. The best interests of the child remain the paramount consideration.
I am of the view that there is a benefit to the child in having a meaningful relationship with both parents. Subject to the need to protect her from physical or psychological harm, X should have the opportunity to build up a relationship with her mother which goes beyond spending three days a week with her during the day only.
I am not satisfied that there is an unacceptable risk of harm to the child in introducing a gradual progression towards spending time with her mother overnight, but I agree with the Independent Children’s Lawyer that the Court should take a cautious approach.
The comments of the Family Consultant in the memorandum previously referred to remain apposite at this interim stage:
From a developmental perspective, at aged 9 months, X is at a critical stage of attachment development. Irrespective of the reasons, X has already experienced disruption to her attachment relationships, particularly in her attachment to her mother. She is now at an age where separation from attachment figures and increased wariness in the presence of those less familiar to her is likely to become increasingly stressful to her. At this critical developmental stage, constancy and consistency of attachment figures is important. Irrespective of the reasons, at least in recent months, such constancy and consistency appears to have been provided by the father and, possibly, also by the family day carer.[8]
[8] Family Consultant memorandum to Court 14.9.2010 at page 2
Those comments were written when the child was aged 9 months. She is now sixteen months old and has been in the primary care of her father for the past eleven months. It would be expected that her attachment to him has developed significantly over that period.
Her mother is a familiar figure for X. She sees her mother for three days a week and spends the entire day with her. She has not spent time in her mother’s care overnight and I would be concerned that it will initially be stressful for her to spend a night away from her father, even if she were in familiar surroundings with her mother. I am not persuaded that spending two nights in a row away from her father’s household would be in X’s best interests, as she would be likely to become anxious at being away from her father for too long.
In my view, one night each week would be sufficient to accustom this infant to spending time in her mother’s care. If she started spending each Monday night with her mother, this would allow her to develop a routine and she would, one hopes, soon be reassured that after one night away she would be returned to the familiar surroundings of her father’s home.
The advantages, as I see them, are that there would be the same routine every week so that the child would more easily become familiar with that new regime. The father would, in my view, be less anxious if the child were initially only away for one night rather then two.
This arrangement would also reduce the number of changeovers each week, which would be desirable, as the parties’ relationship is poor and there would inevitably tension when they meet. The child is likely to sense this tension, which could add to any anxiety she may have about going from one parent to the other.
This change to her circumstances will have an effect on the child, but by adopting a cautious approach, the likely adverse effects should be alleviated.
I am mindful that X is only sixteen months old. She is too young for her views to be sought, but she is a little girl who should spend regular time with her mother. It is significant that she has a (country omitted) background and this will need to be given consideration in the future.
There have been mutual allegations of family violence, which have not been tested by cross-examination. There is no family violence order in force.
The parties have separated and are likely to remain so. The mother has changed her residence on two occasions. The change in the father’s household is that his daughter A, X’s half sister, now lives in his household on a full time basis, so that X sees her daily.
Counsel for the mother told the Court that her client was not seeking orders for parental responsibility at this interim stage. In my view, equal shared parental responsibility would not be viable at this stage, due to the parents’ poor relationship and the fact that X will still be spending the bulk of her time in the care of her father for the immediate future.
Thus, I consider that, until further order, the father should have sole parental responsibility for the child but the mother should have responsibility for making day to day decisions about the child when she is in her care. X will, as a result of these orders, be spending more time in he mother’s care each week.
I am not satisfied that changeover between the parents at their respective residences is viable, especially as the mother has constraints on her disclosing her exact address placed on her by the refuge, which has arranged her accommodation. That said, when final orders are to be made, the (omitted) Police Station would not be a desirable option, and the parties need to come up with some other place where changeover can be effected.
There seems to be little point in making an order that the parties should advise each other of their change of address when the mother is neither able nor willing to advise the father of her address. The order would only affect the father.
I am certainly of the view that no physical chastisement of this child should take place. She is only sixteen months old.
The parties should inform each other of any illness or injury that she suffers.
I will order a Family Report.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 20 May 2011
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