Lorton and Mitchell
[2012] FMCAfam 86
•13 January 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LORTON & MITCHELL | [2012] FMCAfam 86 |
| FAMILY LAW – Children – parenting orders – interim orders – best interests of the child – parental responsibility – where father retained child after agreed period of time with the child – observations on the undesirability of practice of retaining child after agreed time for the purpose of precipitating Court orders – proper course for a party is to commence court proceedings. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 61DB |
| Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 |
| Applicant: | MS LORTON |
| Respondent: | MR MITCHELL |
| File Number: | SYC 7879 of 2011 |
| Judgment of: | Scarlett FM |
| Hearing date: | 13 January 2011 |
| Date of Last Submission: | 13 January 2011 |
| Delivered at: | Sydney |
| Delivered on: | 13 January 2012 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Ardino |
| Solicitors for the Applicant: | Adams & Partners Lawyers |
| Solicitor for the Respondent: | Mr Carrasco |
| Solicitors for the Respondent: | HC Solicitors |
ORDERS
UNTIL FURTHER ORDER
The child [X] born [in] 2006 is to live with the Applicant Mother.
The Mother is to have sole parental responsibility for the child [X].
The child is to spend time with the Father:
(a)each alternate weekend during the school term from 4:30pm on the Friday until 6:00pm on the Sunday commencing on Friday 3 February 2012;
(b)for the first half of the autumn, winter and spring school holiday periods commencing at 4:30pm on the last day of the school term and concluding at 6:00pm on the middle Saturday of the school holiday period; and;
(c)on the weekend that includes Father’s Day in each year.
The child will not spend time with the Father on the weekend that includes Mother’s Day in each year.
For the purposes of Order 3 above, the Father will collect the child from the Mother at the McDonald’s Family Restaurant at [Suburb omitted] at the commencement of his time and return him to the Mother at the McDonald’s Family Restaurant at [Suburb omitted] at the conclusion of his time with the child.
If the Father is unable to collect or return the child to the Mother personally because of illness, injury, a work commitment or some unforseen circumstance, then the parental grandparents or either of them or the Father’s sister MS MITCHELL may collect and deliver the child in the place of the Father.
Neither party is to denigrate or criticise the other party in the presence or hearing of the child or permit any third party to do so.
IT IS NOTED that publication of this judgment under the pseudonym Lorton & Mitchell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 7879 of 2011
| MS LORTON |
Applicant
And
| MR MITCHELL |
Respondent
REASONS FOR JUDGMENT
The application before the Court arose as an urgent application filed by the Mother of the parties’ child [X] on 28th December 2011. [X] is five years old. The Mother sought, amongst other things, a recovery order, as she claimed in her affidavit in support of her application that the Father had not returned the child from an arranged visit with him despite arrangements to the contrary.
The circumstances are that the parties had arranged for the Father to collect the child on the morning of Christmas Day, and it was the Mother’s understanding that the child would be returned that evening. However, that did not take place.
The Mother attended the police station at [Suburb omitted] where the child was due to be returned only to be informed by the police that the Father had told them that he had no intention of dropping off the child, and the child was not returned. The child remained in the care of the Father, and on 28th December 2011 the Mother filed her application seeking parenting orders. That application came before the Court on 10th January 2012.
Background
The background to this matter is set out in the affidavit of the Mother which was sworn on 28th December 2011. The parties commenced a relationship in 2004. They did not marry, nor did they reside together. The relationship came to an end early in 2007. There is one child of the relationship, [X], who was born [in] 2006. He is five years of age. The Mother has a new relationship and has one child of that relationship, a little boy called [Y], who was born [in] 2011.
The Mother alleges that the Father was violent and abusive towards her in August 2007. There have been various communications between the parties, including the attendance at mediation, and in paragraph 21 of the Mother’s affidavit she deposes that a further mediation has been organised through Legal Aid New South Wales which is to take place next Tuesday, 17th January 2012.
There have been attempts by the parties and their then legal advisers to negotiate consent parenting orders. Indeed, a copy of minutes of order is annexed to the Mother’s initiating application. It was the intention of the parties that orders by consent would be made in the Local Court of New South Wales at [Suburb omitted] on 4th December 2008. However, that did not eventuate.
The Father’s solicitor has told the Court that the Mother withdrew from that agreement almost at the last moment and the Father has been frustrated in his efforts to arrange parenting orders by consent. It is a fact that the first parenting order that has been made in respect of the parties was that made by this Court on 10th January 2012, when I ordered that the Father was to return the child to the care of the Mother on Thursday 12th January 2012. That has in fact taken place.
The parties have attended a child dispute conference with a family consultant, and a family consultant memorandum has been produced. The parties’ lawyers each have a copy of that. According to the memorandum, it was agreed that the child would continue to live with the Mother and would spend time with the Father on alternate weekends, half of school holidays and alternate Easters. Some of those arrangements required clarification, and the question of changeover remained in dispute. I have heard submissions on that point.
The child is attending school for the first time at the beginning of term 1 this year. The Mother has arranged that he would go to the [omitted] School, [Suburb omitted], which is not the Father’s choice. However, there appears to have been no agreement between the parties about that school. The family consultant notes that the child has been enrolled at the [omitted] School, has done the preparation course for the school and it would likely be unsettling for him to change his school plans at this late stage. I can only agree.
There is evidence of this child having been diagnosed with some anxiety, and there has been tendered a mental health plan dated 11th October 2011 from Dr B in which she sets out the child has anxiety and reports of bedwetting and becoming anxious after visiting the Father. These matters are not the subject of agreement between the parties.
The Father does not agree with the Mother’s proposals for changeover. The Mother had suggested the McDonald’s restaurant at [Suburb omitted] for collection and had eventually agreed to the McDonald’s restaurant at [Suburb omitted] for the child to be returned. The Father wanted the Mother to collect the child from the McDonald’s at [Suburb omitted]. The Mother says that she has no car and no drivers licence, nor does her current partner have a car, and that it would impose a considerable strain on her to travel that distance by public transport, especially bearing in mind that she has another child who is less than a year old.
The Father points out that he has work commitments, he is on call and may well be required to attend work in his occupation on a Sunday and that the Mother should play a greater role in the arrangements.
The Father also submits that the child should spend some further time with him during these school holidays, and he does not agree with the Mother’s proposal that the next time that the Father should see the child is on the first weekend in the school term commencing on Friday 3rd February 2012.
The Father claims that this is in fact “payback” and that the Mother wishes to keep the child for the balance of the school holidays in retaliation for the fact that the child spent from Christmas Day until 12th January 2012 with the Father.
I propose to make interim orders today. The Father’s solicitor expresses the hope that the parties can still enter into consent orders on a final basis over the next month. I did comment earlier that that on the history of the parties seemed to be a triumph of hope over experience, but it may well be now that the matter has come to Court and the parties have had the benefit of a family consultant’s input and a child dispute conference and now that the parties have lawyers who are actively involved in assisting them in reaching a resolution of the matter, this may well happen. The Court will make interim parenting orders. They will be orders until further order.
As has been set out by the Full Court of the Family Court in Goode & Goode[1], the Court must consider the presumption under section 61DA of the Act that it is in a child’s best interest for both of the parents to have equal shared parental responsibility of the child unless the application of the presumption is inapplicable due to such matters as family violence or unless it is not in the best interest of the child for that to take place. However, it is quite clear that any finding by the Court on the question of parental responsibility on an interim basis must be disregarded when making final parenting orders.
[1] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
The Mother has alleged violence by the father from 2007 which was a subject of a complaint but did not reach any court proceedings. I am not satisfied that at this stage with the degree of hostility and miscommunication between the parties that equal shared parental responsibility would be in the best interests of the child at this early stage, and if the allegations of family violence were to be made out – and I stress that the Court is not in a position to make a factual finding at this stage – then the presumption of equal shared parental responsibility would not apply. But a Court must consider parental responsibility, and at this stage, subject to what may be done under section 61DB of the Act, I propose to order that the Mother is to have sole parental responsibility.
The Father wants to spend time with the child not only on alternate weekends during the school term but on Wednesday evenings of the off-week with a pickup from school and a return to school the following morning. That is a not uncommon arrangement, but at this stage, I am of a belief that it is premature and may not be in this child’s best interests. He is just starting school. He is due to start school in a fortnight’s time, and he needs to adjust to the new regime of going to school five days a week. Children are often stressed and become tired once they start school, and it would not be helpful to impose too much strains on the child at this stage. However, during the course of this year, that situation can change.
The family consultant is of the view in her memorandum to the Court that it will be of benefit to this child for there to be some stability and predictability in the time when he is to spend time with his father, and I am certainly of that view. There does need to be a regime of parenting orders that can get started, and parties are expected to stick to it.
The solicitor for the Father has told the Court that the Father only retained the child for the period of time that he did out of frustration because he had not been able to persuade the Mother otherwise to come to any sort of an agreement about what proper parenting orders should be arranged for the child. I should make it quite clear that the Court does not accept that view. I indicated to the parties the other day that it is inappropriate for parties to take matters into their own hands and in effect to hold the child as a hostage until orders can be negotiated.
If the Father was frustrated, and he may well have been, that parenting orders had not been made, then the proper thing to do was to see his solicitor, instruct his solicitor to prepare and file an application and an affidavit in support and bring the matter before the Court in the normal way. By holding the child back and not returning him as agreed for a period of three weeks, it did produce a result in that the Mother commenced urgent proceedings seeking the recovery of the child. This is not a practice that the Court would encourage. It is certainly not conducive to cooperation and harmony between the parents, and it is a practice that the Court will not condone.
The best interests of the child remain the paramount consideration for the Court under section 60CA of the Act. The Court determines what is in the child’s best interests by considering the matters under subsection 60CC(2) and 60CC(3) of the Family Law Act. The Court looks at the interests of the child and having a meaningful relationship with each parent, and there is sufficient information before the Court to indicate that it is of benefit to this child to have a meaningful relationship with his father and with his mother.
The Court also must take the steps to protect the child from physical or psychological harm due to being subjected to or exposed to abuse, neglect or family violence. There is an allegation of violence having taken place, but it relates to the year 2007, and if that happened in the past, it would be better to stay in the past. There are allegations by the Mother that the Father has used verbal abuse to her, and I would comment that it is not of benefit to a child psychologically but can in fact be quite harming to a child for there to be disharmony between parents, and this is often reflected at changeover. If the parties cannot say something pleasant to each other at changeover, they should say nothing at all.
The Father’s solicitor has raised a concern that the Mother had insisted that the Father and the Father only be available to collect or deliver the child; however, the Mother’s solicitor, Mr Ardino, has told the Court that the Mother in these circumstances would not object in the circumstances to the paternal grandparents or the Father’s sister, who is a young adult, collecting and delivering the child, and indeed, that may reduce the likelihood of disharmony between the parties.
As to collection and delivery at changeover, I am persuaded that the fact that the Mother has neither a drivers licence nor access to a car is a factor that should be taken into account. I am not persuaded at this stage that [Suburb omitted] is an appropriate changeover point, and I am disposed at this stage to appoint the McDonald’s Family Restaurants at [Suburb omitted] and [Suburb omitted] accordingly. All of this can change. The Mother has selected the child’s school, as I said, without consultation with the Father. He has to go to school somewhere, and it would be destabilising to him to make a change at this stage.
What I propose to do is to reconsider this matter at the end of February or early in March. That will give the parties a chance to deal with the orders that the Court is going to make. If the parties abide by the orders, it will be of benefit to the child and, indeed, in his best interests, because he will have some certainty in his life, he will know where he is going to be and when and with which parent, and if that can reduce disharmony and suspicion between the parties, that must be in this child’s best interests.
At this stage, I will make orders until further order, and I am happy to consider any agreement that the parties make over the next month or so. I am of the view that alternate weekends during the school term, half of the school holidays and particularly the weekend that includes Father’s Day should be times when this child should spend time with his father. Quite clearly, the weekend that includes Mother’s Day is a time when this little boy should be with his mother. These orders can be modified and expanded upon by agreement or after submissions, depending on what happens over the next few months.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 2 February 2012
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