Landis & Landis
[2010] FMCAfam 1283
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LANDIS & LANDIS | [2010] FMCAfam 1283 |
| FAMILY LAW – Children – Interim parenting orders – best interests of the child – child aged eleven months – equal shared parental responsibility – family violence issues. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65DAA, 68L Australian Citizenship Act 2007 (Cth), s.12 |
| Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 |
| Applicant: | MS LANDIS |
| Respondent: | MR LANDIS |
| File Number: | SYC 4810 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 3 November 2010 |
| Date of Last Submission: | 3 November 2010 |
| Delivered at: | Sydney |
| Delivered on: | 23 November 2010 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Cohen |
| Solicitors for the Applicant: | David H. Cohen & Co |
| Counsel for the Respondent: | The Respondent appeared in person |
| Solicitors for the Respondent: | No solicitor on the record |
| Solicitor for the Independent Children’s Lawyer: | Mr Samuel |
| Solicitors for the Independent Children’s Lawyer: | Brian Samuel & Associates |
ORDERS UNTIL FURTHER ORDER
All previous parenting orders are discharged.
The child [X] born [in] 2009 is to live with the Respondent Father.
The child [X] is to spend time with the Applicant Mother:
(a)From 8:30am to 1:00pm each Monday, Wednesday and Friday, commencing on Monday 29 November 2010; and
(b)From and after Monday 28 February 2011, from 8:30am to 5:30pm each Monday, Wednesday and Friday.
Notwithstanding Order 3(a) above, the child [X] is to remain in the care of the Father on Monday 27 December 2010.
For the purposes of Order 3(a) above, the Father will deliver the said child to the Mother at 8:30am each Monday, Wednesday and Friday in the foyer of the [D] Police Station and the Mother is to return the child to the day care provider MS N at 1:00pm at her home at [address omitted] in the State of New South Wales.
For the purposes of Order 3(b) above, the Father will deliver the child to the Mother at 8:30am each Monday, Wednesday and Friday in the foyer of the [D] Police Station and the Mother will return the child to the care of the Father at 5:30pm each Monday, Wednesday and Friday in the foyer of the [D] Police Station.
Neither the Applicant Mother nor the Respondent Father are to change their residential address or contact telephone numbers without first notifying each other and the Independent Children’s Lawyer in writing.
The parties are restrained and injunctions hereby granted restraining each of them from abusing, harassing or interfering with each other and from denigrating each other in the presence of the said child and from permitting any other person to do so.
The parties are restrained and injunctions hereby granted restraining each of them from attending the other’s place of employment except by way of written consent from the other party.
The parties are restrained and injunctions are hereby granted restraining each of them from removing the said child from the Sydney metropolitan area except between 1:00pm on Friday 24 December and 10:00pm on Monday 27 December 2010.
Each party MS LANDIS born [in] 1983 and MR LANDIS born [in] 1958 and their servants or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child [X] born [in] 2009 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child [X] born [in] 2009 on the Airport Watch List otherwise known as the PACE Alert System in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the said Watch List until the Court orders its removal or suspension.
The Applicant is to pay the setting-down fee prescribed by the Federal Magistrates Regulation 2000 or apply for a reduction of that fee, no later 6 May 2011.
The parties are to file and serve all further affidavits upon which they seek to rely no later than 6 May 2011.
The matter is adjourned to the 18th, 19th and 20th of May 2011 for Final Hearing at 10:00am before Federal Magistrate Scarlett in Court 7A, level 7, Lionel Bowen Building, 99 Goulburn Street, Sydney NSW 2000.
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 for interim parenting orders concerning the parties’ infant daughter, [X], who was born [in] 2009. She is just eleven months old.
The Mother, in her application filed on 13th September 2010, seeks an order that the child should live with her. That application is opposed by the Father and not supported by the Independent Children’s Lawyer.
Background
The parties met on the Internet in about May 2007 and met face to face in Thailand in July of that year. They were married in Thailand [in] May 2008.
The Applicant is a citizen of Thailand who was born [in] 1983. She is 27 years old.
The Respondent is somewhat older. He is aged 52 and was born [in] 1958. He is an Australian citizen. He is a [occupation omitted] by profession.
The Respondent sponsored the Applicant to come to Australia on a temporary spouse visa. The Applicant arrived in Australia on 5th October 2008. The parties commenced living together as husband and wife.
The child [X] was born [in] 2009.
The parties separated in June 2010. The Applicant claims that the Respondent coerced her into leaving the child and flying back to Thailand on 26th June. She returned to Australia on 16th July 2010. She deposes in her affidavit affirmed on 30th July 2010 and filed on 2nd August that the Respondent only allowed her to see the child for five minutes “after which the Respondent Husband grabbed the baby from her cot, took her out of the room and I was forced to leave the Former Matrimonial Home by the Respondent Husband’s sister”. The Applicant deposes that the Respondent does not want her to have any relationship with the child and is withdrawing his sponsorship of her visa.
In a further affidavit affirmed on 25th August 2010 the Applicant deposed that she obtained accommodation in a refuge, initially in Newcastle and then in Sydney. She made a further attempt to see the child on 8th August but states that the Respondent and his sister would not let her. Later, on 15th August, the Applicant made a further attempt to see the child. There was an altercation and the Respondent called the police, but eventually the Applicant was able to spend about two hours with the child.
In his Response, filed on 30th August 2010, the Respondent seeks interim orders:
a)That the parties have equal shared parental responsibility for the child;
b)That the child live with the Respondent;
c)That the child spend supervised time with the Applicant;
d)That the parties be restrained by injunction from removing the child from Australia; and
e)That her name be placed on the Airport Watch List maintained by the Australian Federal Police.
It is the Respondent Husband’s case, as set out in his affidavit affirmed on 26th August 2010, that throughout their relationship the Applicant constantly demanded large sums of money from him. He deposed that the Applicant Wife said to him:
I never loved you…I married you because I thought that you were rich…and I could get half your money.[1]
[1] Affidavit of Mr Landis 26.8.2010 at paragraph [64]
The Husband further deposed that on 19th June 2010 the Wife attacked him by pushing him down the stairs whilst he was holding the child. He telephoned his sister who called the Extended Hours Mental Health Team at [omitted] Hospital.
The Applicant later said that she wished to return to Thailand to continue her university studies and that the child could stay with him. He purchased an airline ticket for her and she flew to Thailand.
The Respondent deposes that he has a child from a previous relationship named [Y], who is ten years old. She spends time with him on Wednesday nights, alternate weekends and half of the school holidays.
The Respondent sets out in his affidavit various instances where the Applicant was violent to her. He has also expressed the view that the Applicant suffers from borderline personality disorder[2]. It should be noted that whilst the Respondent is a [occupation omitted] the Court would be extremely reluctant to rely on his diagnosis of the Applicant Mother, as he is hardly an impartial observer.
[2] Ibid at [82]-[86]
The Respondent Father has also claimed that the Applicant has expressed a desire to obtain work in a massage parlour or escort agency.[3]
[3] Ibid at [88] and [142]
The Respondent has deposed that he has reduced his working hours to be available to spend more time looking after the child.
On 13th September 2010 the parties attended a Child Dispute Conference with a family consultant. No agreement was reached other than that the child should not be removed from Australia. Each party claimed to have been the victim of domestic violence by the other. Each party raised concerns about the other’s parenting capacity.
A recommendation was made that the child’s interests should be independently represented by a lawyer under s.68L of the Family Law Act 1975, and on 16th September 2010 Mead FM made an order to that effect. Her Honour also ordered that during the period of the adjournment, to 28th October 2010:
a)[X] live with the Father.
b)[X] spend time with the Mother in the presence of a Salvation Army worker on each of the 17th, 20th, 22nd and 24th September 2010 from 9:30am to 11:00am.
c)[X] thereafter spend time with the Mother on Monday, Wednesday and Friday of each week from 9:30am to 11:00am on an unsupervised basis.
Her Honour also ordered that all handovers should occur at the home of the child’s day care provider.
An interim hearing was fixed for 28th October 2010 but was not able to be reached, due to the pressure of other business, and it was adjourned until 3rd November, when submissions were heard from Mr Samuel, the Independent Children’s lawyer, Mr Cohen, who appeared for the Applicant Mother, and the Father in person.
The Parties’ Proposals
The Independent Children’s Lawyer proposes that:
a)All previous parenting orders should be discharged;
b)Changeover between the parties should take place at the KFC Restaurant in [address omitted];
c)Neither party is to change their residential address or contact telephone number without notifying the other and the Independent Children’s Lawyer;
d)The parties be restrained by injunction from abusing, harassing or interfering with each other or denigrating the other in the presence of the child;
e)The parties be restrained by injunction from attending each other’s residence or place of employment without consent or to pick or deliver the child;
f)The parties be restrained by injunction from removing the child from the Sydney metropolitan area except for the Christmas period when the child is in her father’s care; and
g)Each party should be restrained by injunction from removing the child from the Commonwealth of Australia and the child’s name to be placed on the Airport Watch List.
Mr Samuel submitted that the child should remain living with the Father but that the Mother’s time with her should be substantially increased. He was of the view that there would be no need for the Mother to be supervised when the child is spending time with her. He further submitted that after about three or four months the Mother’s time could be increased further.
For the Applicant Mother, Mr Cohen submitted that the Mother was “willing to live with” the orders proposed by the Independent Children’s Lawyer, but was finding the changeovers difficult, due to what she saw as the hostility towards her by the child’s day care provider. He submitted that changeovers should take place at [D] Police Station. This latter proposal was supported by the Independent Children’s Lawyer.
Mr Cohen told the Court that the Mother was seeking orders that were originally proposed by the Independent Children’s Lawyer, although the ICL was not pressing those particular orders at this stage. Those orders, 2 and 3 in the ICL’s original minute of proposed orders, provide that:
a)The child would live with the Mother; and
b)She would spend time with the Father;
i)Overnight on Wednesdays, from 5:00pm to 9:00am;
ii)From 5:00pm on Friday afternoons until 5:00pm on Saturday afternoons each alternate week;
iii)From 5:00pm on Friday until 5:00pm on Sunday and alternate weekends thereafter; and
iv)From 5:00pm on Christmas Eve until 5:00pm on 28th December 2010.
The Father submitted that it was in the child’s best interests that she should remain living with him, for the sake of stability in her life. He said there was no reason to change the status quo. He was opposed to the idea of his daughter living in a refuge, which would be the case if she were living with the Mother.
The Father did not oppose changeovers taking place at [D] Police Station. He also submitted that the child could spend time with the Mother between 8:30am and 5:30pm.
The issues in dispute appear to be:
a)With whom the child should live;
b)The parenting capacity of each party;
c)Which parent has been violent to the other;
d)The mental state of each party;
e)The Father’s belief that the Mother may leave Australia and seek to take the child with her; and
f)The Father’s belief that the Mother only married him for his money.
It appears to be agreed that neither party should be permitted to take the child out of Australia. It also appears to be agreed that changeovers between the parties should take place at the [D] Police Station.
Relevant Considerations
In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration (Family Law Act 1975, s.60CA).
The Court determines what is in a child’s best interests by having regard to the primary considerations set out in s.60CC(2) and the additional considerations set out in s.60CC(3). The Court must also consider, where possible, the extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent (s.60CC(4)), and, where the child’s parents have separated, events that have happened and circumstances that have existed since the separation occurred (s.60CC(4A)).
The Court must consider the presumption in s.61DA of the Act that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility and consider whether that presumption should apply in the particular circumstances of the case (see Goode & Goode[4]).
[4] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
If the Court does decide that it is in the child’s best interests for the parents to have equal shared parental responsibility, the Court must then look at the considerations in s.65DAA(1):
a)Whether the child spending equal time with each of the parents would be in the best interests of the child; and
b)Whether the child spending equal time with each of the parents is reasonably practicable.
Consideration
The primary considerations, as set out in s.60CC(2) of the Act, are:
a)The benefit to the child of having a meaningful relationship with each of her parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Family Consultant, in her memorandum to the Court of
14th September 2010, dealt with the question of the child’s attachment to her parents, saying:
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 of 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…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.
I am satisfied that there is considerable benefit to the child in having a meaningful relationship with both parents. She appears to have a stable relationship with her father, who is currently her primary caregiver, with the assistance of his sister and the day care provider.
There are allegations of family violence by each parent against the other, and it is clearly not in this child’s interest to be exposed to family violence, whoever is the perpetrator.
Occurrence Pad entries subpoenaed from the NSW Police show, relevantly, incidents on 18th July, 15th August and 29th August 2010. There is no apprehended violence order in force relating to either party. However, altercations between the parties have occurred and it is clearly not in the child’s best interest to be exposed to these occurrences. There is a need to reduce the interaction between the Mother and the Father to limit the number of opportunities for them to engage in disputes about the child.
There are a number of additional considerations set out in s.60CC(3) of the Act, not all of which are relevant.
[X] is only eleven months old, so it is not possible to ascertain her views.
The nature of her relationship with each parent is one of a high degree of dependence, because of her young age. She needs to spend time with each parent to allow attachment relationships to develop appropriately. The evidence does not refer to the child’s paternal grandparents, and her maternal grandparents live in Thailand.
The Father’s sister has been assisting him with [X]’s care, and she also has a day care provider, Ms N. The Father also has a daughter from a previous relationship, [Y], aged 10 years, who spends Wednesday nights and alternate weekends with him. [Y] is [X]’s half sister.
Paragraph 60CC(3)(c) refers to 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 evidence is that the Mother accuses the Father of attempting to exclude her from the child’s life, whilst the Father fears that the Mother may try to take the child back to Thailand.
The likely effect of any changes in the child’s circumstances, including any separation from either of her parents (s.60CC(3)(d)), could well be significant for her, noting the Family Consultant’s comments about the disruption of her attachment relationships, particularly with her mother. Separation from attachment figures was said to be likely to be increasingly stressful to her.
Paragraph 60CC(3)(e) requires the Court to consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations with both parents.
This should not be a problem from a geographical point of view, as the Father lives in [omitted] and the Mother now lives in a refuge called [omitted]. It is the parents’ difficulty in communicating with each other that will be the problem, not their proximity.
The Court must consider the capacity of each of the child’s parents and any other relevant person to provide for the needs of the child, including emotional and intellectual needs (s.60CC(3)(f)). Each party raises concerns about the parenting capacity of the other. The Father is particularly critical of what he describes as the Mother’s violent temper and her lack of knowledge as to how to care for the child. He has considerable reservations about her mental capacity and psychological state, believing her to suffer from borderline personality disorder.
The Mother raises the issue that the Father is in full time employment as a [omitted] and is concerned that he is leaving the child’s care to others, particularly the long day care provider. She sees that as inappropriate when she is not working and is available to care for [X] on a full time basis.
[X] is eleven months old. She was born [in] 2009. She was born in Australia of mixed Australian-Thai parentage. The Mother is a Thai national and her family, including her parents, live in Thailand.
Each parent is critical of the other’s attitude to the responsibilities of parenthood (s.60CC(3)(i) displayed by the other. The Mother is especially critical of what she sees as the Father’s actions in keeping her daughter from her.
Family violence is a significant issue in this case, although there is no evidence of any family violence order being in place.
The Father believes that the Mother has failed to fulfil her responsibilities as a parent, citing her desire to return to Thailand and leave [X] with him, when the child was only seven months old. He also claims that the Mother wishes to work in the sex industry, which he does not see as at all consistent with her responsibilities as a parent. The Mother considers that the Father is attempting to exclude her from the child’s life by denying her adequate opportunity to spend time with [X]. She believes that [X] should live with her, but the Father will not allow that to happen.
The child’s parents have separated (s.60CC(4A)). They did so in acrimonious circumstances and their mutual acrimony has hardly diminished. The Mother has left the former matrimonial home, claiming that the Father has excluded her. She has now obtained refuge accommodation.
The presumption that it is in the best interests of the child for her parents to have equal shared parental responsibility does not apply, in my view, because of the mutual allegations of family violence.
The question of equal shared parental responsibility should more properly be left until the final hearing.
Conclusions
This child, still an infant, has had a tumultuous home life almost since she was born. She needs peace and stability, and an opportunity to develop her relationship with each of her parents. The Family Consultant noted in her memorandum to the Court:
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 development 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 the family day carer.
To my mind, the best interests of the child at this stage require:
a)That [X] continues to live with the Father in a set, consistent routine;
b)That she spends time with her mother on a regular and frequent basis, which should increase over time; and
c)Changeovers between [X]’s parents should take place in circumstances that do not involve altercations between the parents, whether violent or verbal.
Currently, the child is living with her father and spending time with her mother as prescribed by the interim orders made by Meade FM on 16th September 2010. As I understand it, the Mother is spending time with the child on Mondays, Wednesdays and Fridays each week from 9:30 to 11:00am, on an unsupervised basis.
It would not be beneficial to reduce the frequency of the child’s time with the Mother, as she needs regular contact with her mother to develop an appropriate attachment. What she does need, however, is more time with her mother. It does not appear to be necessary to have that time supervised.
The changeover of the child has been taking place at the home of the long day care provider, Ms N, but this has been problematic, as the Mother claims that Ms N has been less than friendly to her. Whilst the Courts have reservations about changeovers taking place at police stations on a regular basis, it seems to be necessary at this stage for the changeover to be at the [D] Police Station, and I propose to order that this happen in the foyer of the Police Station. It is most important that there be no acrimony between the parties at changeover.
The Father states that he has substantially reduced his working hours in order to care for [X]. He also has his daughter from a previous relationship spending time with him on a regular basis, and time between her and her half sister will be important to develop a relationship.
The Mother’s time with the child is to be increased by lengthening the time that they spend together. At present, the Mother and child spend only one and a half hours together on Mondays, Wednesdays and Fridays.
The Father suggested that a pick-up time of 8:30am and a collection time of 5:30pm would be more suitable for him as far as his working hours are concerned. He suggested that the Mother could spend time with the child one, two or even three days each month. The drawback in this suggestion is that the frequency of the time between Mother and child would be substantially reduced, which would be deleterious to the development of attachment between Mother and child. At present, this child is spending time with her mother on three occasions each week. I do not propose to reduce this frequency.
What appears to me be in the best interests of this child is to order that the Mother’s time with her on Mondays, Wednesdays and Fridays be increased from one and a half hours to four and a half hours. Thus, the Mother will collect the child from the father at 8:30am on Mondays, Wednesdays and Fridays. To avoid any altercation between the parties, the handover will take place in the foyer of the [D] Police Station.
The Mother will then return the child at 1:00pm. This handover will continue to take place at the home of the day care provider, Ms N. I also propose to order that the Father should have the care of the child for four days over the Christmas period, from Christmas Eve until
28th December.
The child will need to get used to spending significantly more time with her mother. As suggested by the Independent Children’s Lawyer, the Mother’s time with the child should again increase after a period of three months, provided that the Mother has no difficulty in coping with the child in the meantime.
I would propose that from Monday 28th February 2011 the Mother’s time with the child should increase to an all day arrangement, from 8:30am until 5:30pm, again on Mondays, Wednesdays and Fridays.
Whilst the Court will endeavour to expedite the final hearing of this matter, the pressure of the Court’s workload means that the best that can be hoped for is a hearing in the first half of 2011.
One matter that needs to be considered is that this child should not be removed from Australia by either party. On the evidence before the Court, she is an Australian citizen. There is no issue that her father is an Australian citizen, and the child was born in Sydney.[5] Thus, [X] acquired Australian citizenship by birth (Australian Citizenship Act 2007, s.12).
[5] Affidavit of Ms Landis 30.7.2010 at paragraph [18]
In my view, neither party should be permitted to remove this child from Australia during the course of these proceedings. I propose to order that her name be placed on the Airport Watch List maintained by the Australian Federal Police, until further order.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 19 November 2010
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