LANDIS & LANDIS
[2013] FMCAfam 213
•8 March 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LANDIS & LANDIS | [2013] FMCAfam 213 |
| FAMILY LAW – Children – parenting orders – interim orders – cross applications – interlocutory applications where final hearing part-heard – “make-up” time – vaccination – immunisation – proposed increase in mother’s time with child each week – proposed change of changeover venue – where final orders sought as interim orders. |
| Family Law Act 1975, ss.60CA, 61DA, 65DAA |
| Landis & Landis [2010] FMCAfam 1283 Landis & Landis [2011] FMCAfam 490 Landis & Landis [2012] FMCAfam 1452 |
| Applicant: | MS LANDIS |
| Respondent: | MR LANDIS |
| File Number: | SYC 4810 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 8 March 2013 |
| Date of Last Submission: | 8 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 8 March 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Graves |
| Solicitors for the Applicant: | David H. Cohen & Co |
| Counsel for the Respondent: | The Respondent appeared in person |
| Counsel for the Independent Children’s Lawyer: | Mr Sperling |
| Independent Children’s Lawyer: | Brian Samuel |
ORDERS
The Application and cross-Application for Interim Orders filed in Court today are dismissed.
UNTIL FURTHER ORDER:
The Applicant Mother is to spend time with the child X born (omitted) 2009 as follows:
(a)From 8:30am to 5:30pm on Sunday 10 March 2013; and
(b)From 8:30am to 5:30pm on Mother’s Day Sunday 12 May 2013.
The Respondent Father is to file and serve an updated affidavit by Mr T no later than 1 July 2013.
The Respondent Father is to file and serve any updated affidavit setting out any further facts upon which he seeks to rely no later than 1 July 2013.
The Application is adjourned to 30 July 2013 to go to 31 July 2013 for further hearing at 10:00am.
The Court requires the assistance of an interpreter in the (country omitted) language for the benefit of the Applicant.
The Independent Children’s Lawyer is granted leave to issue a further five (5) subpoenas.
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 by the Mother for interim parenting Orders. There is also a cross Application by the Father.
The Applications have been brought at the end of the third day of evidence in the final hearing of the Application for parenting Orders brought by the Mother. The proceedings are part-heard, having overrun the allocated three days, and two more hearing days have been allocated, on 30th and 31st July 2013. The Respondent Father’s cross-examination by counsel for the Mother is unfinished.
Orders Sought
The Mother, by an Application filed in Court by her counsel and optimistically headed “Orders by Consent – Minutes of Proposed Consent Orders”, seeks these Orders on an interim basis:
1. The Mother is hereby authorised to attend to the immunisation of the child X born on (omitted) 2009 authorised in accordance with the National Immunisation Program Schedule.
2. That the child spend time with the Mother as follows:
2.1Each Monday commencing 8:30am until Tuesday at 5:30pm;
2.2Each Thursday commencing 8:30am until Friday at 5:3 pm.
3. That changeover occurs at (omitted) Police Station.
The Father has brought an Application seeking three Orders, one of which has already been complied with and did not need any further argument. The other two orders he seeks are:
2. That changeovers occur at the entrance to (omitted) Shopping Centre, (omitted).
3. That all other previous orders remain in place (except for change of handover location).
The Mother has also made an oral application for a one-off period of time with the child from 8:30am to 5:30pm on Sunday 10th March, to make up for the day lost today because the Mother has had to attend Court.
Further, noting that the proceedings have had to be adjourned for further hearing on 30th and 31st July, I have raised the question whether an order should be made that the child should spend Mother’s Day with her mother, as there is no provision for that in the current Interim Orders.
Submissions
The Father and the Independent Children’s Lawyer both oppose the Mother’s application for an order that she should be permitted to arrange for the child to be immunised in accordance with the National Immunisation Program Schedule. The Father opposes the proposed orders because he has doubts about the efficacy and desirability of vaccination of children with a view to immunising them from various diseases and has set out in his most recent affidavit affirmed on 20th February why he has taken this view.
The Independent Children’s Lawyer opposes the proposed order because it is an issue for the final hearing, rather than an interim issue. The Father is part-heard in cross-examination and is yet to be asked any questions about that issue. Mr Sperling of counsel, who appears for the Independent Children’s Lawyer, has told the Court that even if counsel for the Mother does not ask the Father any questions about that issue, he certainly will when it comes to his turn to cross-examine the Father.
The Independent Children’s Lawyer and the Father both oppose the Mother’s application for an interim order that would increase the Mother’s time with the child to 8:30am on Thursday until 5:30pm on Friday, which would effectively add another full day to the Mother’s time with the child each week.
Mr Sperling has referred the Court to the recommendation of the Family Consultant in the second Family Report, prepared on 14th November 2012, contained in paragraph 29 of the Report:
At this time, X spending increased time with her mother is not considered to be appropriate. Any increase to the amount of time that X spends with her mother should be dependent on the outcome of therapeutic intervention to address the identified insecurity in X’s attachment relationship with her mother. On the other hand, if X’s time with her mother were to be decreased, this may serve to reinforce the insecurity that X already apparently experiences.[1]
[1] Family Report 14 November 2012 page 13 paragraph [29]
Thus, the Independent Children’s Lawyer takes a conservative view at this stage and opposes any change to the time that the child spends with her mother before the conclusion of the proceedings.
The father seeks to change the venue for changeover between the parents from the (omitted) Police Station, which has been the venue since orders were made on 20th May 2011 after an interim hearing (Landis & Landis[2]). The (omitted) Police Station was also used as a changeover point on some occasions as a result of orders made on 23rd November 2010 after an earlier interim hearing (Landis & Landis[3]).
[2] [2011] FMCAfam 490
[3] [2010] FMCAfam 1283
The Father’s view is that it is inappropriate for the police station to continue to be used as a venue for changeover for a young child, now aged three years and three months. The Mother seeks to retain the police station, claiming that she has fear of the Father. The Independent Children’s Lawyer opposes the change at this stage, but Mr Sperling asks the Court to note that the Independent Children’s Lawyer has concerns about the continued use of a police station as a venue for changeover when final orders are to be made.
The Mother seeks to spend time with X on Sunday 10th March from 8:30am to 5:30pm, not only because she has not been able to spend time with the child today because of having to attend Court but because this coming weekend involves the (country omitted) New Year, and she would like to take the child to a (country omitted) New Year activity on Sunday. The Mother was born in (country omitted) and she wishes to encourage the child to learn about and enjoy her (country omitted) heritage.
The Independent Children’s Lawyer supports the Mother’s proposal.
The Father agrees this proposal in part, suggesting that the day should be shared between the parties. He points out that if X were to spend the day with her mother then she would miss out on spending the day with him.
As to Mother’s Day, the Mother agrees that it would be appropriate for X to spend the day with her. The Independent Children’s Lawyer does not oppose this proposal and noted that the current Orders are silent in respect of both Mother’s Day and Father’s Day. The Father, however, points out that Mother’s Day this year, Sunday 12th May, coincides with his birthday and he would like his child to spend his birthday with him.
Conclusions
The Court is required by s.61DA of the Family Law Act to apply the 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, unless:
a)it does not apply for reasons of abuse or family violence (s.61DA(2));
b)it is rebutted by evidence that it would not be in the child’s best interest (s.61DA(4)); or
c)when the Court is making an interim order, it would not be appropriate for the presumption to be applied.
The allocation of parental responsibility has been considered in two earlier interim proceedings in 2010 and 2012, Landis & Landis[4] at [54]-[55], and Landis & Landis[5] at [30]-[31]. The situation remains unchanged. It is inappropriate to apply the presumption at this stage.
[4] [2010] FMCAfam 1283
[5] [2012] FMCAfam 1452
The Mother’s applications for interim orders requiring the child to be immunised and increasing the time the child spends with the Mother, by an additional day each week, are no more than an attempt to obtain final orders before the final hearing has been completed. They are issues for the final hearing, and in this regard I note that the Father’s evidence has not been completed and he has not been cross-examined about his attitude to immunisation at all. The Family Consultant has made a recommendation about the time the child spends with the Mother but she has not yet given oral evidence.
These matters are quintessentially issues for final orders and it is inappropriate to make interim orders. Similarly, the Father’s application to change the venue for changeover is “jumping the gun”, because this, too, is a matter for final orders. The police station, for better or for worse, has been the changeover venue since 2010 and there is no fresh evidence to justify any change on an interim basis.
I do propose to make an order that the child X should spend from 8:30am to 5:30pm with her mother on Sunday. It is a “one-off” situation to make up for a day lost between the Mother and child because of the necessity for the parties to spend the day at Court. The Family Consultant’s recommendation at paragraph [29] of the Family Report, untested though it is, is that if X’s time with her mother were to be decreased, this may serve to reinforce the insecurity that the Family Consultant considers she currently experiences.
I am satisfied that it will be in X’s best interests to spend Sunday with her mother, especially as her mother wishes to take her to a function to celebrate (country omitted) New Year. It would appear that this would assist the child to enjoy her (country omitted) heritage.
I am also satisfied that it will be in X’s best interests to spend from 8:30am to 5:30pm on Mother’s Day with her mother. Mother’s Day is, in my view, both an occasion that is of particular significance to a child (s.65DAA(3)(b)(ii)) and an occasion of special significance to the child’s mother (s.65DAA(3)(c)).
Whilst the Mother’s Minute of Proposed Orders handed up by counsel for the Mother on the first day of the hearing does not mention Mother’s Day or any other similar days, such as Father’s Day, Christmas Day and birthdays, the Court is not bound by any one party’s proposals. The task of the Court, in deciding whether to make a particular parenting order, is that set out in s.60CA of the Family Law Act, to regard the best interests of the child as the paramount consideration.
Of course, the Father has pointed out that Mother’s Day this year coincides with his birthday. I have taken that into account, but the Father has conceded that X spent time with him on his birthday in 2012, as 12th May 2012 was a Saturday and the Father does not work on Saturdays. In any event, the child will spend the morning of 12th May with her father, until shortly before 8:30am, and will be with him that evening, from 5:30pm or shortly thereafter. It seems to me that there will be plenty of time for X and half-sister A to celebrate their father’s birthday with him.
In my view, the orders made are in the child’s best interests.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 15 March 2013
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