MABRAY & SABATINO
[2011] FMCAfam 62
•21 January 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MABRAY & SABATINO | [2011] FMCAfam 62 |
| FAMILY LAW – Children – parenting orders – best interests of the child – one child aged 6 years – boy living with mother – where both parents seek orders that the child should live with them – equal shared parental responsibility – school enrolment – whether the child should attend school in Sydney or in Newcastle – whether child should attend a Catholic primary school – substantial and significant time – occasions and events of particular significance to the child and each parent. PRACTICE & PROCEDURE – Affidavits filed late – where applicant sought to rely on affidavits filed after the time specified by the Court in directions for trial – observations on the undesirability of ignoring the Court’s directions. |
| Family Law Act 1975, ss.11F, 60CA, 60CC, 61D, 61DA, 65DAA |
| Mabray & Sabatino [2010] FMCAfam 599 In the Marriage of Hall (1979) 5 Fam LR 609 |
| Applicant: | MR MABRAY |
| Respondent: | MS SABATINO |
| File Number: | SYC 7084/2009 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 28 & 29 October 2010 |
| Date of Last Submission: | 29 October 2010 |
| Delivered at: | Sydney |
| Delivered on: | 21 January 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Elliot |
| Solicitors for the Applicant: | Peter Baker Solicitor |
| The Respondent: | In person |
ORDERS
All previous parenting orders are discharged.
The child of the marriage [X] born [in] 2004 is to live with the respondent mother.
The applicant and the respondent are to have equal shared parental responsibility for long-term issues about the child’s care, welfare and development.
Each party is to have sole responsibility for making decisions about the day-to-day care, welfare and development of the said child at such times as he is in that party’s care.
The child [X] is to spend time with the father as follows:
(a)Each alternate weekend during school term time from 6.00 pm on Friday until 6.00 pm on Sunday PROVIDED THAT if the Monday immediately following the Sunday is a public holiday then the child is to spend time with the father until 6.00 pm on the Monday;
(b)For half of the Autumn, Winter and Spring school holiday periods at times to be agreed between the parties and failing agreement for the first half of the school holiday period in 2011 and all odd-numbered years thereafter and for the second half of the school holiday period in 2012 and all even-numbered years thereafter;
(c)For a period of three (3) weeks during the Christmas/January school holiday period commencing at 9.00 am on 4 January in each year and concluding at 6.00 pm on 25 January in each year, commencing on 4 January 2012;
(d)From 9.00 am on Christmas Eve until 2.00 pm on Christmas Day in 2011 and all odd-numbered years thereafter and from 2.00 pm on Christmas Day until 6.00 pm on Boxing Day in 2012 and all even-numbered years thereafter;
(e)On the weekend on which Father’s Day falls in each year from 6.00 pm on Friday until 6.00 pm on the Sunday;
(f)For a period of three (3) hours on the child’s birthday in each year;
(g)From 9:00 am to 6:00 pm on 25 January 2011; and
(h)At such other times as the parties shall agree.
For the purposes of Order (5)(a), if the child has a sporting commitment on the Saturday morning, the mother must inform the father of the time and place of that sporting commitment so that the father may attend and spend time with the child.
Subject to Order (6) above, changeover between the parties will take place at the home of the maternal grandmother at [W] or such other place as the parties agree in writing.
The mother is to do all things necessary to ensure that the child is to telephone the father each Tuesday and Thursday between the hours of 6.00 pm and 7.00 pm at all times when the child is in her care.
The father is to do all things necessary to ensure that the child is to telephone the mother each Tuesday and Thursday between the hours of 6.00 pm and 7.00 pm when the child is in his care.
Neither party is to commit the child to attend sporting activities on a weekend commencing after 11:30 am on a Saturday without the consent of the other party.
The parties must inform each other of any change to their address or landline telephone number or mobile telephone number within twenty four (24) hours of such change occurring.
The parties must authorise the Principal of any school attended by the child to provide to each party copies of school reports, school newsletters, information about school photographs and all other information that is usually provided to parents of children attending that school.
Each party must inform the other of any medical emergency or serious illness or injury involving the child as soon as possible and in any event within four (4) hours and provide to the other party all necessary information about any hospital at which the child is admitted or treated and the name and address of any medical practitioner and other health professional providing treatment to the child for any medical emergency, serious illness or injury referred to in this Order.
Both parties are restrained from using any form of physical discipline on the child.
Both parties are restrained from administering to themselves any illicit drugs at any time that the child is in their care or for twelve (12) hours beforehand.
Both parties are restrained from taking the child to any hunting activity or permitting any third person to do so.
The mother must ensure that any firearms and ammunition stored in her residence are securely housed and that the child is not permitted access to such firearms or ammunition.
The mother is permitted to enrol the child at the [J] School at [K].
IT IS NOTED that publication of this judgment under the pseudonym Mabray & Sabatino is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 7084/2009
| MR MABRAY |
Applicant
And
| MS SABATINO |
Respondent
REASONS FOR JUDGMENT
Application
The applicant is the father of a little boy called [X], who is 6 years old. [X] lives with his mother, the respondent to this application.
The father wants [X] to live with him and to go to school at [P] in [C], New South Wales, from the start of first term in 2011. The mother, on the other hand, seeks orders that [X] continues to live with her and goes to school in the Newcastle area.
Background
The parties were married [in] 2004. Their child [X], the only child of the marriage, was born [in] 2004. The parties separated in February 2008 and the mother moved out of the matrimonial home at [D], taking [X] with her. She went to live with her mother in [W], on the New South Wales Central Coast. She has since moved to [S], in the [H], where she lives with her new partner, Mr W.
The father, at 49 years of age, is somewhat older than the mother. He was born [in] 1961. The mother is 31 years of age. She was born [in] 1979.
The relationship between the father and the mother has not been cordial and there have been disagreements about the time the child spends with the father. The father has complained that at times the mother has refused to let him speak to the child on the telephone, including on his birthday, and has refused to allow him to spend time with the child.
The father commenced proceedings by filing an application for parenting orders on 23rd November 2009. In that application he sought equal shared parental responsibility and week-about shared residence, with the child living in Sydney.
He filed an application in a case a week later, seeking urgent interim orders because he claimed that the mother was refusing to let the child spend time with him, and had done so since 28th November 2009.
The mother filed a response, to which a lengthy statement was attached, on 28th January 2010, seeking that the child [X] should live with her, that the parties should have equal shared parental responsibility, and that the child should spend every third weekend with the father.
The application came before the Court on 10th February 2010. Orders were made that the parties should attend a Child Dispute Conference with a Family Consultant under the provisions of s.11F of the Family Law Act 1975. The parties also entered into interim consent orders, providing that:
a)the child [X] would live with the mother;
b)the parties would have shared parental responsibility;
c)there would be a communication book to be filled in by the parent with whom the child was spending time with;
d)the child would spend the weekend of Friday 12th February to Sunday 14th February with the father; and
e)the child would spend half of each school holiday period with the father.
The parties attended the child dispute conference on 19th February 2010. They reached partial agreement about the child spending every second weekend with his father, one of which would be in [S], where the mother was living, and one in Sydney, where the father lives. They could not agree on other details.
When the parties attended Court on 1st March 2010, they entered into further interim orders, providing that the child would spend every third weekend with his father and that he would speak to the father by telephone no less frequently than twice a week.
On 6th May 2010 the father’s application was set down for final hearing on 28th and 29th October. At the same time, at the father’s request, an interim hearing was appointed.
The father filed an amended application in a case on 4th June 2010.
On 23rd June, as a result of the interim hearing, orders were made by consent:
a)Varying the earlier orders so as to provide that if the Monday immediately following the weekend when [X] was spending time with his father was a public holiday, then the time spent with the father was to extend to 6.00 pm on the Monday; and
b)That both parties were restrained from taking the child on any hunting expedition.
The Court also made an order restraining the mother from requiring or encouraging the child to call anyone other than his father by the names “Dad” or “Daddy”.
A Family Report was ordered for the purpose of the final hearing. The Report was released to the parties on 18th October 2010.
On 19th October 2010 the father filed an amended application for final orders, together with an affidavit setting out the evidence upon which he sought to rely at the final hearing. He also filed an affidavit sworn on 15th October 2010 by Ms N.
The documents were eleven days late. The directions for hearing made by the Court on 6th May 2010 provided that:
The parties are to file and serve all further affidavits upon which they seek to rely by Friday 8 October 2010.
The respondent did not object to the applicant’s reliance on the late-filed documents.
That said, it is an all-too common practice amongst solicitors who appear in matters in the Sydney Registry to ignore the Court’s directions and file their trial documents out of time. It is perhaps a good time to make public the Court’s displeasure at this practice. Practitioners who file their documents late should be aware that the Court will place the onus upon them to show cause why they should be permitted to read affidavits that have been filed outside the time specified by the Court. If an adjournment becomes necessary because documents have been filed out of time then it may well sound in costs.
The father’s application seeks significantly different orders than those he originally sought. The mother relies on her response and affidavit filed earlier in the proceedings, on 28th January 2010.
Orders sought
In his amended application, the father now seeks orders:
a)That the parties have equal shared long-term parental responsibility for the child [X];
b)That each party should have responsibility for the day-to-day care welfare of the child when he is in that party’s care;
c)That the child should live with the father;
d)That the child should spend time with the mother:
i)On each alternate weekend;
ii)For half of each school holiday period;
iii)On the weekend of Mother’s Day; and
iv)On the weekend either prior to or after the child’s birthday.
e)That the child would telephone the mother each Tuesday and Thursday;
f)That the child is to attend [P] School in Sydney from the commencement of Term 1 in 2011;
g)That neither party would enrol the child in weekend sporting activities which would limit the other party’s time with the child; and
h)Other ancillary orders.
The mother seeks orders that:
a)[X] should live with her;
b)Each party should have sole responsibility for the child’s day-to-day care welfare and development;
c)The parties have joint responsibility for making decisions about the long-term care, welfare and development of the child;
d)The child should spend time with the father at times agreed or, failing agreement, from Saturday until 4.00 pm on Sunday on each third alternate weekend;
e)Each parent will allow, facilitate and assist the child to telephone the other or communicate by email or Skype, with telephone calls to take place at 7.00 pm each Tuesday evening;
f)The parents are to keep each other informed of their current address and telephone number;
g)Neither parent is to use physical discipline on the child;
h)The child is to spend half of each school holiday period with each parent;
i)The parents are to ensure that the child sleeps in his own bed whilst he is in their care;
j)Changeover between parents is to take place at [W] or as agreed;
k)The parties are to ensure that the child participates in his sporting commitments in the [H]; and
l)Other ancillary orders.
The response also contains this notation:
IT IS NOTED:
The father shall pay to the mother $100 per week to assist with the child’s costs each week.
This does not appear to be an order sought, and the mother did not refer to it in her submissions or evidence. There is a child support assessment in force, so the Court does not have the jurisdiction to make any order in the nature of a child maintenance order, if that was what was proposed.
Issues in dispute
Counsel for the father, Mr Elliott, told the Court that the reason for the father’s change to his application, so that he now sought orders for the child to live with him, was due to the perceived failings of the mother, namely:
a)Her poor capacity to understand the responsibilities of shared parenting;
b)Her suspension of the father’s time with the child for capricious and self-centred reasons; and
c)The limited amount of time she permitted the child to spend with the father.
The father wishes to enrol the child in [P] School in Sydney. The mother has her own choice of school in Newcastle, at [K].
Evidence
The father relied on his affidavit affirmed on 18th October 2010. He was cross-examined by the mother.
In summary, he is now 49 years old and [X] is his only child. The parties were living at [D] when they separated in 2008. The mother left the matrimonial home and took the child with her. The parties have not commenced divorce proceedings.
The father deposed that before they separated the parties shared the child’s care. They both worked and the mother was studying.
The father still lives in the former matrimonial home, which is a
2 bedroom home with a separate bedsitter. The child has his own bedroom. The bedsitter is occupied by one Ms P, who works for [omitted].
The father is self-employed as a [omitted] and his work hours are therefore flexible. This means that he can work around his commitments in caring for the child. He has even built a [omitted] for the child.
The father deposes that his income is derived from his [omitted] business and he meets all of [X]’s expenses when the child is in his care. He states that he has also met other expenses when requested by the mother.
The father also deposes that he knows very little about the mother’s new partner, a man named Mr W.
He cannot relocate his business to the [S] area. He has specialised in [omitted] and “the business of a [omitted] is tied to the ocean and large waterways”.[1]
[1] Affidavit of Mr Mabray 18.10.2010 at paragraph [46]
The father has a step-sister, whom he also describes as a “close friend”[2], by the name of Ms N. She has sworn an affidavit in this matter. She is a regular visitor and the father deposes that she and the child have a good relationship.
[2] Ibid at [47]
The father set out in his affidavit in some detail his concerns that the mother was placing restrictions on the time that he spent with [X].[3] In particular, he claimed that the mother refused to allow the child to spend any time with him once he had commenced proceedings.
[3] Affidavit of Mr Mabray 18.10.2010 at [50]-[114]
The father has described in some detail in his affidavit what he described as “[Ms Sabatino]’s ongoing denigration of me and my relationship with [X]”.[4] Those instances included:
a)On 5th March 2010 saying to the father in front of other parents “I raised [X] by myself…You are a drug addict and an alcoholic and a bad father and you won’t have weekends in between and no school holidays at Easter with [X]”;[5]
b)On 12th October 2009 saying to the father in front of the child words to the effect of “F… off. If you ever want to se him again get a lawyer”[6]; and
c)On or about 2nd July 2009 saying ‘I am his mother, he will always be better off with me. I wish you were not around. We could all just get on with our lives. [X] would be so much better off, not to mention me”.[7]
[4] Ibid at [115] – [125]
[5] Ibid at [116]
[6] Ibid at [119]
[7] Ibid at [121]
The father has deposed in some detail in his affidavit that he has had difficulty arranging time to see the child on such occasions as the child’s birthday and the Christmas period. He has also set out the difficulties he has experienced in arranging time with the child during the school holidays.
The father deposes that he has always maintained an interest in the child’s education. He complained that the mother unilaterally enrolled the child at [S] Public School and that she now proposes to enrol him at the [J] School, [K], notwithstanding that he has not been raised in the Catholic faith.
The father proposes that [X] should live with him and that he should attend [P] School at [C]. There is a vacancy available for him there.
The father’s step-sister, Ms N, swore an affidavit on 15th October 2010. She deposed that she has known the child since 2004. She denies that she is involved in any form of intimate or romantic relationship with the father.
Ms N’s evidence is that the mother has consistently displayed hostility towards her and to the father. She deposes that she has observed that the child and his father have a positive relationship, “a special bond which is visible to all who see them together”.[8] Ms N was not required for cross-examination.
[8] Affidavit of Ms N 15.10.2010 at [28]
The mother affirmed an affidavit which stated that it was affirmed on “5/2/10” but was in fact filed at the Registry on 28th January 2010. She deposed that since separation she lived with her mother at [W] for one and half years and then to [S] with her new partner, Mr W, whom she first met in October 2008.[9]
[9] Affidavit of Ms Sabatino 28.1.2010
The mother’s evidence is that she is in a stable relationship with Mr W, who relates well to the child. They have purchased land in [S] and plan to build a house on that land.
She replies to the father’s concerns that the child is being encouraged to call Mr W by the name “Daddy” by stating:
Mr W plays with [X]’s friends at school and they all recognise Mr W as [X]’s other Daddy, as children generalise what they see. [X] calls Mr W by his name. However, it would be nice for Mr W if [X] one day decides to call him Daddy too. However, that is for [X] to decide in his own time.[10]
[10] Ibid at [[5]
The mother deposed that she left the father:
…because of his marijuana addiction and excessive alcohol consumption which brought many problems into our relationship…He fell asleep in his dinner on Saturday evenings one a number of occasions because he was so intoxicated he even once did it in front of my mother…However, [Mr Mabray] would let steam off fortnightly he would turn most discussions into a verbally abusive one. I felt it was because of his excessive drinking and worse marijuana use. Marijuana made him moody and he always mixed it with a lot of alcohol making him very fatigued and unable to deal with [X], myself or life in general. I grew tired of constantly giving him the ultimatum between us or marijuana, constantly threatening him that if he didn’t stop smoking marijuana that I would leave him.[11]
[11] Affidavit of Ms Sabatino 28.1.2010 at [9]
The mother also deposes that there were several instances where the father was violent towards her during the relationship, both during the pregnancy and when the child was a baby. She annexes to her affidavit an Emergency Department Triage/Clinical Record dated 22 July 2006 from the [omitted] Hospital, where she was examined and x-rayed after presenting with an injury to her wrist. She alleged that she had been assaulted by her partner.[12]
[12] Meaning the father
The mother was cross-examined by the father’s counsel, Mr Elliott. She said that she was planning to move to Newcastle in mid-December and they have bought a house there. She wants the child to attend the [J] School in 2011. Her difficulties with the father spending time with [X] relate to the fact that the child is unsettled when he is returned and she has concerns about the travel time involved.
The mother wants the child to play sport. She said she would like the father to attend [X]’s soccer games.
The Family Report
A Family Report was prepared by Ms S, a Regulation 7 Family Consultant. She gave oral evidence on the first day of the hearing and was cross-examined both by the father’s counsel and by the mother, who was not represented.
For the purposes of her Report, Ms S interviewed the father, Ms N, the mother and Mr W. She observed the child in the company of the father and, later that same day, in the company of the mother and Mr W. She subsequently spoke to the father and the mother by telephone.
Ms S identified the issues in dispute as:
·Whether [X] should live with his father or remain living with his mother
·Whether, in the event that he remains living with his mother, he should spend alternate weekends with his father or continue with weekend visits every three weeks.
·Whether the father drinks alcohol to excess and uses drugs, which affects his parenting
·Whether the father has limited motivation to provide child-oriented activities for [X]
·Whether the mother has failed to adhere to agreed parenting arrangements and obstructed the contact between [X] and his father.
In his interview with Ms S, the father agreed that he had smoked marijuana, but said that he no longer did so. He said he drank socially. He described how the child attended sailing races with him but later wondered whether the child was becoming bored with that activity.
The father said that his relationship with Ms N was platonic and that they had become very close after the death of his father. Ms S noted that:
He intimated that there had been a time when their relationship was more intimate than platonic but was vague when asked top clarify what that meant.[13]
[13] Family Report page 8 at [22]
Ms S described the mother as “an articulate, sometimes sharply-spoken woman”[14] who initially said that she was unsure why she was attending the interviews for the Family Report. Mr W was described as pleasant, supportive and protective of the mother. He spoke fondly of [X].
[14] Ibid at [24]
The mother told Ms S that she thought the current arrangement for [X] to spend every third weekend with the father was better for him than every second weekend, and that he was much more settled after that change to the arrangements.
The mother noted that:
[X] had a good relationship with his father and enjoyed seeing him.[15]
[15] Family Report page 9 at [27]
The mother presented as critical of the father and reacted strongly when she heard that he had changed his proposal to one where he sought that the child should live with him.[16]. The Family Report Writer noted:
She disagreed with Mr Mabray’s depiction of her as having a volatile nature and said that he was, in fact, the moody, irritable one. She spoke quite mockingly of Mr Mabray and his proposals and was surprised and upset when she heard that Mr Mabray was proposing that [X] lived with him. She indicated that she saw this as a preposterous idea as [X] had always lived with her and she was his ‘primary support and caregiver’. She felt [X]’s strongest attachment was to her and described their relationship as ‘weirdly close’. She refused to consider the possibility of [X] living with the father and left the room for a few minutes rather than hypothesise on this topic.[17]
[16] The father did not file his Amended Application seeking that the child should live with him until 19th October 2010, some five weeks after the interviews took place, so the mother may not have been aware until the interview that the father had changed his proposal.
[17] Family Report page 10 at [31]
The mother’s main stated concern was the father’s drug and alcohol use, which she blamed for the demise of their relationship. She said she drank one or two glasses of wine most evenings, more when she went out, and denied using any illicit drugs.
Ms N told Ms S that she frequently stayed with the father when she visited Sydney and described a warm, close relationship between [X] and the father. She described the father as a social drinker. Ms S noted that Ms N:
…presented as having some genuine involvement with Mr Mabray and his family and as being somewhat ambiguous about the nature and extent of that involvement.[18]
[18] Family Report page 13 at [46]
Ms S interviewed the child. He was fairly non-committal but spoke positively about stying with his father, who was “never cross”. He said that his mother and stepfather were a bit strict but did not seem to be unduly bothered.
Ms S observed [X] with his father. The child seemed to be quite relaxed and played with his father “in a fairly companionable way”. However, they seemed to Ms S to be “a little tense”.
The child was observed with his mother and Mr W. Ms S noted that:
In general, he behaved very positively to his mother and stepfather and seemed responsive to their interactions with him and keen to maintain the activities together.[19]
[19] Family Report page 17 at [61]
In the Family Report Writer’s evaluation, the need for reintroduction of a schedule of alternate weekends between the child and his father was strongly stressed. Ms S stated:
At six years, [X] is a young child and fortnightly weekend time would be a minimum requirement for maintaining a significant relationship with a parent, especially when this routine is unlikely to be supplemented by intermittent visits, owing to the distances involved. [X]’s relationship with his father appeared to be a close and significant one and it would be best promoted and developed in the context of more regular time together. If the schedule remained at once per three weeks, [X] would likely find the repeated reintroduction to spending time with Mr Mabray a more difficult task than if this occurred more frequently.[20]
[20] Family Report page 18 at [66]
The Family Report also contains some criticism of the mother’s approach to the time spent by [X] with his father:
There was some indication that she has behaved reactively, at times, and coped poorly with conflict. This was suggested by some of her past email responses, her attitude towards [X]’s contact with Mr Mabray and her difficulties even contemplating Mr Mabray’s proposals. Also concerning was her apparent lack of insight into her own behaviour and justification on the grounds that she had been going through a difficult time. It would be helpful to [X] and for the parenting arrangements if Ms Sabatino could find more effective ways of dealing with conflict and stress and she may also be assisted by some professional input.[21]
[21] Family Report at pages 19-20 at paragraph [73]
That said, Ms S did not consider that those aspects of the mother’s behaviour were so concerning as to warrant the child moving to live with the father. She considered that there was a close relationship between the child and his mother, and that this was his primary attachment.
The recommendations in the Family Report are that:
i)[X] continue to continue to live with his mother;
ii)That the child’s schedule for spending time with his father reverts to every second weekend, as well as provision for school holidays and other occasions;
iii)That the father seek professional input about the planning of his weekend activities with [X];
iv)That the mother seek some professional input about alternative and constructive ways of dealing with conflict; and
v)The child should not be provided with any instruction about what he should call Mr W.
Ms S was cross-examined but not shaken in her views.
Submissions
It was submitted that the best interests of the child favour his residence with his father and regular and extensive contact with his mother, by reason of:
a)The strong bond;
b)The father’s commitment;
c)The mother’s likely absences working and commuting to Sydney;
d)The mother’s lack of insight into the child’s rights and need for meaningful contact with his father; and
e)The mother’s failure to put her circumstances before the Court
Referring to the various factors to be considered, counsel for the father submitted that the child’s relationship with his father was being compromised by the mother’s actions, including reducing the frequency of weekends that the child spends with his father from fortnightly to every third weekend, denigrating the father in front of others, her promotion of her current partner as “another daddy”, and her failure to consult with the father about activities such as sport and schooling.
It was also submitted that the additional considerations under s.60CC(3) to which the Court should have regard include:
a)The mother’s poor capacity to deal with the responsibility of maintaining contact between the father and the child;
b)A change of residence, including enrolment at [P], would benefit the child’s education and provide other opportunities and benefits;
c)There was no evidence that separation from the mother would be damaging to the child or even prolonged;
d)The father is passing on to the child a traditionally family interest, the sea, which was passed on from his father to him;
e)The mother’s attitude to shared parenting responsibilities is “sub optimal”; and
f)The mother’s new partner is not on affidavit is unknown to the father, who is concerned about his suitability as a carer for the child.
Further, the father submits that the mother has not facilitated contact and fostered the relationship, but has demonstrated a tendency to treat the child’s relationship with his father as a low priority, favouring sport with the de facto partner over time with the father, has used contact as a disciplinary tool against the father for filing proceedings, and has reacted unreasonably to unavoidable delays in the handover of the child.
The mother submitted that [X] should remain living with her, because:
a)He has been living with her for three years;
b)His primary attachment is to her;
c)She has done a good job raising him so far;
d)Residing with the father would not be in the child’s best interests because the child is happy living where he is;
e)The father may not be able to support the child financially;
f)The mother doubts the father’s emotional and physical capacity given the outcome of the Family Report relating too the father’s connection with the child and her own understanding of the relationship;
g)The mother is concerned and confused about the relationship between the father and Ms N;
h)The father refuses to acknowledge the mother’s contribution to raising the child;
i)She does not want the father’s weekend with the child to be changed from three-weekly to fortnightly;
j)She would like the father to call the child between the hours of 6.00 pm and 7.00 pm every Thursday, which is a suitable time for him to take a call from his father; and
k)She promotes a varied to life’s interests, whereas the father’s interests are more limited.
The Applicable law
Section 60CA of the Family Law Act 1975 provides that 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.
I have done so in this case.
In order to determine what is in the child’s best interests, the Court must consider the matters set out in subsections 60CC(2) and (3). The primary considerations are set out in s. 60CC(2), and are:
a)The benefit to the child in having a meaningful relationship with both 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 additional considerations include:
a)Any views expressed by the child and the weight to be given to them;
b)The nature of the child’s relationship with each of his parents and with other persons, including grandparents;
c)The parents’ willingness and ability to facilitate and encourage a close relationship between the child and the other parent;
d)The likely effect of any change in the child’s circumstances;
e)The practical difficulty and expense of the child spending time with and communicating with each parent;
f)The capacity of each parent and others to provide for the child’s needs;
g)The child’s maturity, sex, lifestyle and background;
h)Whether the child is an Aboriginal child or a Torres Strait Islander;[22]
i)The attitude to the child and the responsibilities of parenthood demonstrated by each of the parents;
j)Whether there are family violence issues;
k)Whether there is a relevant family violence order;
l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings; and
m)Any other fact or circumstance thought relevant.
[22] He is neither
I have considered all of those matters.
The Court must also consider the extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as parent (see subsection 60CC(4)) and, where the child’s parents have separated, as they have in this case, have regard to events that have happened and circumstances that have existed since the separation occurred (subsection 60CC(4A)).
Those matters have been considered.
When making a parenting order in relation to a child, the Court must consider the applicability of the presumption in s.61DA of the Act that it is in the best interests of the child for the parents to have equal shared parental responsibility.
There is no issue about, as both parties have sought such an order.
Under the provisions of s.65DAA of the Act, where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, as is the case here, the Court must consider:
a)whether the child spending equal time with each parent would be in the child’s best interests; and
b)whether spending equal time with each parent is reasonably practicable.
I am not satisfied that it is reasonably practicable.
Where a parenting order provides that a child’s parents are to have equal shared parental responsibility but the Court does not make an order for the child time to spend equal time with each of the child’s parents, s.65DAA (2) requires the Court to consider whether:
a)spending substantial and significant time with each parent would be in the child’s best interests; and
b)whether it is reasonably practicable.
I have considered that requirement.
Conclusions
After considering all of the above matters required by the Act, along with the evidence offered, the submissions made and the matters covered in the Family Report, I have come to the conclusion that it is in [X]’s best interests to remain living with his mother. However, I am also of the view that his best interests require an increase in the frequency of the time that he spends with his father, and I propose to order that [X] should revert to spending alternate weekends with his father.
[23] (1979) 5 Fam LR 609
In making those findings, I am influenced by the recommendations in the Family Report, which I found to be extremely helpful. That is not to say that I have only considered the Family Report, because it is only part of the evidence before the Court, albeit an important part. As was said by the Full Court of the Family Court in the well known case,
In the Marriage of Hall[23]:
(a) There is no magic in a family report. A judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the judge is abdicating his responsibilities…
(b) Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the judge has found them consistent with the rest of the body of evidence before him.[24]
[24] (1979) 5 Fam LR 609 at 615, per Evatt CJ, Asche SJ and Hogan J
I found the Family Report to be persuasive. The Family Consultant was subject to cross-examination and was not shaken in her views.
It is of benefit to [X] to have a meaningful relationship with both his parents. Whilst his primary attachment appears to be with his mother, it is clear from the Family Report that he has a good relationship with his father and enjoys seeing him. The mother conceded as much in the interview with the Family Consultant for the Family Report[25].
[25] Family Report page 9 at [27]
Ms S was firmly of the view that [X] needs to spend time with his father on a fortnightly basis, rather than once every three weeks. She stated that his relationship with his father appeared to be “a close and significant one”[26] and it would be best promoted and developed with more regular time together, especially bearing in mind the distances involved between the residences of the parties.
[26] Family Report page 18 at [66]
It is also a primary consideration that the child needs to be protected from harm by being subjected to or exposed to abuse, neglect or family violence. There is affidavit evidence from the mother that she was subject to violence during the marriage, including when the child was a baby, and that the father used marijuana and drank alcohol to excess.
The parties have long separated and there is no evidence of family violence. The father claims, but the mother does not believe, that he no longer uses marijuana. Both parents claim to be social or moderate drinkers only.
I propose to order that neither party uses any illicit drug before or during the time when the child is in their respective care. I see little utility in making an order restricting the parties’ consumption of alcohol, as there is no persuasive evidence that either parent currently drinks alcohol to excess. It is not unreasonable for a parent to have an alcoholic drink in the privacy of his or her home.
There are additional considerations under s.60CC(3). The child has expressed a view that he liked being at his father’s home and his father was never cross. He described his mother and Mr W as being a bit strict but seemed unphased by this. He spoke positively of his school life.
[X] is still only six years old, but his views should still be given some weight.
He appears to have a good relationship with both of his parents, although his primary attachment seems to be with his mother. He appears to have good relationship with Mr W. His relationship with
Ms N seemed less strong, describing her to the Family Consultant as:
“okay…sort of like her”.
He went on to say that Ms N was “not nice to Mummy”.[27] She clearly spends less time with the child than the other adults interviewed.
[27] Family Report page 14 at [51]
There is a considerable amount of hostility between the parents with a correspondingly low level of communication between them. The father alleges that the mother has actively restricted his time with [X], including cutting down the frequency of his weekends with the child. The father’s counsel pointed to this as an example of the mother’s unwillingness to facilitate and encourage a close and continuing relationship between the child and the father.
I note that on 1st March 2010 the father consented to an interim order that provided that the child would spend from 6.00 pm Friday until 6.00 pm Sunday every third weekend with the father. The father was represented by a solicitor at the time.
The father’s actions in changing his application for final orders to an application that the child should live with him hardly fits with a willingness or an ability to encourage a close and continuing relationship between the child and his mother. This application was only made a short time before the final hearing, and it appears that the mother did not become aware of the change to the orders sought by the father until she attended the interview with the family consultant on 10th September 2010, only about seven weeks before the final hearing.
It is hardly surprising that the mother did not take kindly to this news.
The Family Report makes it clear that the likely effect of making the orders that the father seeks, providing that the child should go from living with the mother, with whom he has lived since his parents separated in February 2008, would be significant. Ms S expressed the view that such a move would be “likely to cause [X] significant distress”.[28]
[28] Family Report page 20 at [74]
I do not consider that such a change would be in the child’s best interests.
There is some practical difficulty in the child spending time with the father, due to the fact that the father still lives in [D], a suburb of Sydney, and the mother has been living at [S] and, more recently, at [K], a suburb of Newcastle. The travelling time has been a bone of contention between the parties.
The parents have the capacity to provide for the child’s physical and educational needs. However, each one needs to give more consideration to the child’s emotional needs, which include the need not only to spend time with each parent but not to have to witness or hear acrimonious discussions, arguments or insults between his parents. This child is not to be used as a weapon for each party to get back at the other for slights and insults that occurred before or since the separation.
The child concerned is a little boy aged six years and nearly eight months. He was born [in] 2004. There are no particular lifestyle, cultural or traditional matters that are relevant.
The child is neither Aboriginal nor Torres Strait Islander by descent.
I have already mentioned the parents’ attitude to the child and to the responsibilities of parenthood demonstrated by [X]’s parents. The animosity that still exists between them has tended to cloud their view of the child, which is not conducive to his best interests. The mother cannot take the attitude that the father is no longer part of [X]’s life. He is, and will remain, the child’s father, and it is clear that this relationship is beneficial to him.
The mother has formed a new relationship with Mr W, who appears to have a good relationship with the child, but he cannot take over the position of father. [X] already has a father.
At the same time, the father may have expressed concerns about
Mr W’s suitability to act as a carer for [X], but the Family Report shows him in a positive light. The father’s counsel criticised the mother for not obtaining an affidavit from Mr W, and in retrospect that was probably an omission on her part, but he was made available for the Family Report. The father needs to accept the fact that mother has formed a new relationship and that Mr W is now part of [X]’s life. If Mr W and the father can remain civil to one another it would be of benefit to the child.
There are allegations of family violence during the time when the parties were together, but they have been separated for nearly three years. There is no evidence of any family violence order in operation.
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.[29] To my mind, the proper orders are to provide that the child should continue to live with his mother but spend more frequent time with his father.
[29] See s.60CC(3)(l)
The only other relevant circumstances are that Mr W possesses at least one firearm and apparently likes to go hunting occasionally. [X] is clearly too young for such an activity, or to be handling firearms. Any firearm or ammunition in the home where he lives should be properly stored as required by the law.
The mother wishes to enrol the child in the [J] School at [K]. As it appears that the mother will be living in that area, this appears to be in the child’s best interests. The fact that the school is part of the Catholic education system in New South Wales is of little moment. There is no evidence before the Court that attending a Catholic school would be contrary to the child’s interests.
The fact that [X] has not been brought up in the Catholic faith does not seem to be of any great moment. It is certainly possible for non-Catholics to attend a Catholic primary school.
I propose to make an order permitting the mother to enrol the child at [J] School at [K].
There is no issue between the parties that they should have equal shared parental responsibility. However, I am not satisfied that it would be reasonably practicable for [X] to spend equal time with each of his parents for these reasons:
a)They live too far apart; and
b)Their current capacity to communicate with each other and resolve difficulties that might arise in implementing an equal time arrangement is considerably below the standard required to make such an arrangement at all practicable.[30]
[30] See s.65DAA(5)
I have considered whether spending substantial and significant time with the father would be in the child’s best interests.[31] I doubt whether it would be reasonably practicable, for the same reasons that I have set out at [119] above.
[31] See s.65DAA(3)
However, the orders that I do propose to make will significantly increase the amount of time spent by the child with the father, although it will largely consist of days spent on weekends and holidays rather than weekdays. That said, there is a need to make an order that should allow the father to be involved in occasions and events that are of particular significance to the child and to the father.[32]
[32] See s.65DAA(3)(b)(ii)
To that end, I propose to make orders that will provide for:
a)Christmas to be shared each year;
b)The father to spend time with the child on his birthday; and
c)The father to spend time with the child on the weekend that includes Father’s Day.
The Court can take judicial notice that Father’s Day and Mother’s Day have an emotional significance for many parents and children, and it follows that the weekend on which Mother’s Day falls should be spent with the Mother.
It is also noteworthy that the father’s birthday falls on 25th January.
I have made specific provision for the child to spend the father’s birthday from 9.00 am to 6.00 pm on 25 January 2011, as that is a day that will have some special significance both for the father and the child. In future years, the child will spend holiday time with the father from 4 January to 25 January in each year, so that he will always be with his father on his father’s birthday.
The parties will need to come to an understanding that their lives have moved on, but they remain [X]’s father and mother. It is in his best interests that he has a good relationship with each of them.
I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 21 January 2011
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