Maigny and Neal
[2010] FMCAfam 563
•8 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MAIGNY & NEAL | [2010] FMCAfam 563 |
| FAMILY LAW – Children – parenting orders – one child – daughter aged one year and seven months at date of hearing – family violence issues – best interests of the child – parental responsibility – drug use. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 60CG, 61DA Domestic and Family Violence Protection Act 1989 (Qld) Federal Magistrates Rules 2001, r.15.09 |
| Applicant: | MS MAIGNY |
| Respondent: | MR NEAL |
| File Number: | BRC 8488 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 15 April 2010 |
| Date of Last Submission: | 15 April 2010 |
| Delivered at: | Sydney |
| Delivered on: | 8 June 2010 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Rosen |
| Solicitors for the Applicant: | Rosen Lawyers |
| Counsel for the Respondent: | Mr McLennon |
| Solicitors for the Respondent: | Cobb Law |
ORDERS
The child [X] born [in] 2008 is to live with the applicant mother.
The mother is to have sole parental responsibility for the child.
The mother and the father are to have the day to day responsibility for the care, welfare and development whenever the child is in the mother or the father’s care.
The respondent father is to spend time with and communicate with the said child as follows:
(a)From 8:30 am on Friday until 5:30 pm on Sunday in each week until the child attains the age of three (3) years, commencing on Friday 18 June 2010;
(b)From the time the child attains the age of three (3) years until the child commences school from 8:30 am on Friday until 5:00 pm on Monday in each week PROVIDED THAT one weekend in each of the months of January, April, July and October in each year the children will spend a further seven (7) days with the father until 5:00 pm on the following Monday;
(c)
From 1:00 pm on Christmas Day until 5:00 pm on Boxing Day
26 December 2010 and each alternate year thereafter;
(d)From 9:00 am on Christmas Eve until 1:00 pm on Christmas Eve 24 December 2011 and each alternate thereafter;
(e)From 8:30 am until 5:30 pm on Fathers’ Day in each year;
(f)From 8:30 am until 5:30 pm on the Father’s birthday in each year;
(g)For a period of two hours on the child’s birthday in each year
(h)From the time the child commences school the child will spend time with the father:
(i)Each alternate weekend from after school on Friday until the commencement of school on the Monday PROVIDED THAT if the Monday is a public holiday or a pupil-free day then until the commencement of school on the Tuesday;
(ii)For one half of each of the school holidays excluding the Christmas/January school holidays commencing at 8:30 am on the Saturday immediately after the school term ends and concluding at 5:30 pm on the middle Saturday of the school holiday period; and
(iii)For a period of three (3) weeks in the school holidays commencing on 2 January in each year;
Notwithstanding the provisions of Order 4 above the child is to spend time with the mother from 8:30 am on Mothers’ Day in each year and on the mother’s birthday in each year.
Once the said child attains the age of two (2) years the mother is to do all things necessary to permit the child to speak to the father on the telephone on two occasions in each week for a period of time not exceeding ten (10) minutes.
For the purpose of facilitating the arrangements in Orders 4 and 5 above the handover of the child from one parent to the other is to take place at the [B] Police Station until such time as arrangements can be made with the [L] Contact Centre for handover to take place at that centre or at such other place as the parties may agree in writing.
The parties are to share the cost of the [L] Contact Centre equally.
These orders shall authorise any educational organisation which the child attends to provide to the father at his expense all reasonable requests for information including but not limited to school reports, newsletters and important school notices including information about school photographs.
These orders shall authorise any health professional who provides treatment to the child to provide to the father at his expense all reasonable requests for information about the child.
Each parent is to inform the other parent as soon as reasonably practical and in any event within twenty-four (24) hours of any serious illness suffered by the child, or any hospitalisation or any medical specialist’s appointment.
Each parent is to keep the other parent informed of her or his current residential address, landline telephone number, mobile telephone number, and email address if any and notify the other parent within forty-eight (48) hours of any changes.
Neither parent is to denigrate, criticise or abuse the other or permit any other person to do so in the presence or hearing of the child.
Neither parent is to administer to himself or herself any prohibited drug including cannabis or marijuana at any time when the child is in their care or within twelve (12) hours before the child is due to come into their care.
IT IS NOTED that publication of this judgment under the pseudonym Maigny & Neal is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
BRC 8488 of 2009
| MS MAIGNY |
Applicant
And
| MR NEAL |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the mother of a little girl called [X] for orders that she live with the mother and spend increasing time with the father as she gets older. [X] was born [in] 2008, so she was aged one year and nine months at the date of the hearing.
The father has varied the orders that he seeks. In his response he sought that the parents should share the child’s care on a fortnightly rotating basis, however, in his case outline he set out that he sought an order that [X] should live with him. On the morning of the hearing, his counsel advised the Court that the father sought the orders that were originally set out in his response.
The Mother’s Proposed Orders
In her Case Outline, the mother seeks orders to the following effect:
a)That the child [X] live with her;
b)That the mother have sole parental responsibility for the child;
c)That the parties have the responsibility for the day to day care, welfare and development of the child when she is in each party’s care;
d)That the father spend time with the child at times as agreed or, in default, as follows:
i)From 8:30 am on Friday to 5:30 pm on Saturday of each week until the child turns two years of age;
ii)From 8:30 am on Thursday until 5:30 pm on Saturday of each week whilst the child is between the ages of two and three years;
iii)From 8:30 am on Thursday until 5:30 pm on Monday of each week whilst the child is between the ages of three and four, with four of those weekends extending to seven days in January, April, July and October;
iv)Each alternate weekend from after kindergarten or day care on Friday until the commencement of kindergarten or day care on Monday whilst the child is between the ages of four and five, with four of those weekends extending to seven days in January, April, July and October;[1]
e)From the time the child commences school, each alternate weekend from after school Friday to the commencement of school on Monday, extending to the commencement of school on Tuesday if the Monday is a public holiday, together with half of the school holidays;
f)Reasonable telephone conversations from the time the child attains the age of two years;
g)Alternate Christmas Days, Boxing Days and Christmas Eves;
h)Mothers’ Day with the mother, Fathers’ Day with the father;
i)The mother’s birthday with the mother;
j)The father’s birthday with the father; and
k)Two hours on the child’s birthday.
[1] Interestingly, this proposed order constitutes a reduction in the time the child spends with the father during that year.
The proposed handover arrangements are to be agreed between the parties or, in default, at the [B] Police Station.
The Father’s Proposed Orders
The father, in his response filed on 2nd November 2009, seeks orders to this effect:
a)That the child spend time with the parents in what would be effectively an equal shared care arrangement over each fortnight:
i)With the father from 9:00 am on Sunday to 5:00 pm on Wednesday;
ii)With the mother from 5:00 pm on Wednesday to 5:00 pm on Saturday;
iii)With the father from 5:00 pm on Saturday to 9:00 am on Wednesday; and
iv)With the mother from 9:00 am on Wednesday to 9:00 am on Sunday.
b)The parties have the responsibility for the child’s day to day care, welfare and development when she is in each party’s care;
c)That the parties have equal shared parental responsibility for the child;
d)That the child spend half of each school holiday with the father;
e)Fathers’ Day with the father from 9:00 am to 5:00 pm;
f)Mothers’ Day with the mother from 9:00 am to 5:00 pm;
g)Alternating Christmas Days, Boxing Days and Christmas Eves;
h)For three hours on the child’s birthday; and
i)Telephone communication once the child is able to speak.
The father also seeks an order restraining each party from removing the child from the State of Queensland without the written consent of the other party.
Background
The parties lived together from December 2005 until December 2008. There is one child of the relationship, [X], who was born [in] 2008.
The parties were only quite young when they lived together. The father was born [in] 1985 and the mother was born [in] 1987.
After the parties separated, the child lived with the mother. Between December 2008 and August 2009 there were no orders in place for the father to spend time with the child. The parties attended a mediation conducted by Relationships Australia on 14th August 2009 which led to an agreement between the parties that the father was to see the child for three hours a day on three days a week.[2]
[2] Affidavit of Ms Maigny sworn 18 September 2009 at paragraph [7]
On 15th September 2009, the mother claimed that the father refused to return the child to her after he had spent time with the child, which led to the current application.
On 23rd September 2009 in the Federal Magistrates Court in Brisbane Coates FM ordered that the father return the child to the care of the mother. His Honour made a number of directions to prepare the application for parenting orders for trial, including appointing Mr Sean Moriarty as a Court Expert under the provisions of Rule 15.09.
Mr Moriarty prepared a Family Report which was released to the parties by Burnett FM on 14th January 2010.
There was an incident between the parties on 8th February 2010, which occurred when the mother called at the father’s home to collect the child. She alleges that he pulled her hair, pulled her backwards onto the ground, and struck her with his open hand about six or seven times.[3]
[3] Affidavit of Ms Maigny sworn 6 April 2010 at paragraph [9]
The mother made a complaint to the Police and on 10th February 2010 the Magistrates Court at [omitted] made a Temporary Protection Order against the father. A copy of that order is annexed to the mother’s affidavit of 6th April 2010. The father consented to a final order on the same terms as the Temporary Protection order on 3rd March 2010.
The father commenced contravention proceedings but the application was withdrawn on 29th March 2010.
Since 9th February, the father has been collecting the child from the mother and returning the child to the mother at the [B] Police Station.
Evidence
The applicant mother gave oral evidence and was cross-examined by Mr McLennon. Her affidavit evidence is that she is renting a house in [E], where she lives with the child. She is not in employment. The mother proposes that the child will commence attending kindergarten once she reaches the age of two years.
In her affidavit sworn on 6th April 2010 the mother deposed that on
8th February 2010 the incident with the father when she was collecting the child from him involved his grabbing her by the hair and pulling her backwards onto the ground. She deposed that the father hit her with an open hand at least six or seven times. He then ran down to her car and took the car keys out of it. The mother ran down to the car but the father came up behind her. She pushed him away. As she was attempting to telephone the police the father pulled her hair again and pulled her backwards onto the ground. The father took the child from her.[4]
[4] Ibid
The mother went to the police station and made a complaint. The father also went to the police station and the child was returned to the mother by the police. The police made an application for a Protection Order under the Domestic and Family Violence Protection Act 1989.[5]
[5] Affidavit of Ms Maigny at [10] and [11]
The mother consulted a medical practitioner for treatment for injuries which she says she received in the incident with the father.
It is the mother’s evidence that she currently does not receive any child support from the father. She initially received about $400.00 from him.
The mother deposed that she wishes to minimise contact with the father by minimising the number of contact handovers.
The mother stated in her affidavit that she used to smoke marijuana but now only does so on rare occasions. She estimated that she only smoked marijuana on two occasions over the previous six months and she intends to give up marijuana completely.[6] She believes that the father still uses marijuana.
[6] Ibid at [19] and [20]
The mother deposed in her affidavit that her communication with the father is “very poor” and he will not discuss the child with her at contact handovers:
He just wants me to give her to him and then walk off.[7]
[7] Ibid at [21] and [22]
The mother was cross-examined by the father’s counsel. She said that the father was abusive to her at the changeover but she did not know why he was yelling at her. She said that she had bruises on her leg and arm and was very sore after the incident. Whilst it was suggested to her that her account of the incident was not truthful, the mother was not shaken in cross-examination and appeared to give a credible account of the circumstances.
Interestingly, the mother said of the father “I believe he is a good Dad.”
The father gave oral evidence and was cross-examined by the mother’s solicitor, Mr Rosen. In his affidavit sworn on 16th March 2010 the father set out how the mother’s solicitors advised him that she was moving to [W] in November 2009, which would mean that the arrangements for him to see the child would have to change. She did not provide him with the address and it was not until he called the mother’s solicitors on 18th December 2009 that he was given the address.
The mother advised him in January 2010 that she was leaving [W] and early in February she told him she was moving to [E] with the child.
The father described the incident on 8th February 2010 in general terms, merely saying that the mother turned up and a confrontation occurred, which resulted in the application by the Police for a Protection Order. Of those proceedings, he said:
Since this date I have consented to the police application on a without admission basis as I am tired of the conflict between the Respondent[8] and I and thought that proceeding to trial would just further heighten emotions between us.[9]
[8] i.e. the mother
[9] Affidavit of Mr Neal sworn 16 March 2010 at paragraph [25]
In cross-examination, he denied that the circumstances of the incident were as the mother described them.
The father complained in his affidavit that the mother was a “heavy user” of marijuana and referred to seeing a bong in the mother’s house when he went to collect the child on 24th January.
The father expressed the fear that the mother might travel interstate “to hide our daughter” and expressed the fear that she had run away with the child pending the outcome of the trial in April. He noted that she had an uncle in Melbourne or Adelaide.
The father was critical of the mother’s emotional state in his evidence.
In cross-examination by the mother’s solicitor, the father conceded that he had not criticised the mother’s ability to care for the child in his affidavit material. He expressed the need for an independent location for contact changeover but did not believe that a contact centre was necessary. He said that he would do so, however, if the Court thought it necessary. He conceded:
I think there is a need to avoid contact between me and [Ms Maigny].
The father went to say that that there was “little or no communication” between him and the mother and there was “no trust” between them. He agreed that it was difficult for him and the mother to act together cooperatively about the child.
The father again conceded that, generally, the mother’s care of the child was good and that the child had spent most of the time with the mother. He did not agree that the child was primarily bonded with the mother.
In re-examination, the father proposed that changeovers could take place somewhere other than a contact centre, and suggested that the child could be dropped off at his sister’s home or at the home of some friends.
The Family Report
The Family Report was prepared by Mr Sean Moriarty, a consultant social worker. It is dated 11th January 2010 and was released on
14th January, so it pre-dates the incident between the parties on
8th February 2010.
For the purposes of the report, Mr Moriarty interviewed both parents and observed the child, then aged 15 months, with each of her parents.
Mr Moriarty noted that the parties had commenced their relationship at a relatively young age, whilst they were both teenagers, and described their relationship as “an extremely chaotic and violent relationship which involved a number of separations and reconciliations”.[10]
[10] Family Report at paragraph [4]
Mr Moriarty expressed the view that the issues in this matter are;
·The extremely immature parental relationship and the lack of insight demonstrated by both parents;
·[X]’s attachments;
·The prognosis of the parents’ future cooperation, given the history up until this point.[11]
[11] Family Report at [13]
Mr Moriarty reported the father as criticising the mother, saying that she had “issues” and described her as “a psycho and loses the plot”.[12]
[12] Ibid at [15]
The father described his relationship with the mother as very poor and said that he felt that attempting to interact or communicate with her was “hopeless”. Mr Moriarty reported him as saying;
If she is not nice, I’m not going to be nice.[13]
[13] Ibid at [19]
Mr Moriarty described the mother as being highly emotional, saying that she cried throughout almost all of her interviews and responded emotionally to almost every question. The mother stated that the child threw tantrums after she returned from spending time with her father.
The mother spoke to Mr Moriarty about the child’s strong bond with her and was not able to describe any bond between the child and her father, although she conceded that she appeared to be happy when she went to her father.
Mr Moriarty observed the child interacting with each parent and noted that the parents were civil with one another at the handover. She appeared to be happy and affectionate with both parents.
In his conclusions and recommendations, Mr Moriarty spoke of the parties as having engaged in:
…an extremely immature and volatile relationship, aggravated by an excessive use of marijuana, impulsive relations and a lack of any demonstrated insight into their respective behaviour.[14]
[14] Ibid at [63]
Mr Moriarty was troubled by the mother’s emotionality and low tolerance of stress, which he thought “suggestive of depression”.[15] He also found that the father’s presentation lacked maturity. He stated that:
It was evidently clear that both parents have not resolved the problems of the relationship and that they remained locked in hostilities with a tendency to be intractable more than not due to this lack of resolution.[16]
[15] Ibid at [64]
[16] Family Report at [66]
He warned that the child should not be exposed to the antipathy between her parents. He expressed the view that the arrangements then in force should be varied to allow the father two nights running with the child each week, continuing until she reaches her preparatory year of schooling, in three and a half years’ time.
As to the father’s criticisms of the mother, Mr Moriarty stated:
Mr Neal’s proposal is prefaced primarily on his views about
Ms Maigny’s volatility and her propensity to provide unstable care of [X]. Within the scope of this assessment, I could not find any evidence to support this other than the fact that Ms Maigny does present with an emotional volatility. It is my belief that it is inappropriate to generalise this to infer that she has problems to the extent that Mr Neal asserts.[17]
[17] Ibid at [70]
Mr Moriarty gave oral evidence by telephone. In cross-examination by the father’s counsel, he expressed the view that the child spending time with the father on two nights a week was predicated on the fact that the mother had moved to [W] at the time. He said he would not be in favour of any shared arrangement and, now that the mother was living closer to the father, he felt that one night plus time during the day would be a proper arrangement.
In answer to questions by the mother’s solicitor, Mr Moriarty said that in view of the incident of the 8th February, the handover between the parents should be at a neutral place. He felt that a contact centre would be an appropriate venue.
Submissions
The mother’s solicitor submitted that the physical violence in the incident of 8th February 2010 would be sufficient to overturn the presumption of joint parental responsibility. In his Outline of the mother’s case he points out that relationship between the parents is poor and their communication is poor.
Mr Rosen conceded that there was no issue that both parties look after the child well when she is in their respective care.
He submitted that contact changeover should occur in a neutral place and that the [L] Contact Centre would be appropriate. The parties should share the costs of the contact centre.
Counsel for the father submitted that the father seeks the orders set out in his Response. He pointed out that the mother had had three different homes in six months whilst the father, by comparison, has a stable home with his parents. The Family Report did not take this stable home environment into account.
Mr McLennon submitted that an order for equally shared time would be appropriate or, failing that, the father could spend more time with the child than just two nights a week.
As to handover arrangements between the parties, he submitted that it is inappropriate to continue at a Police Station but that a contact centre is unnecessary. It is not clear, in any event, that a contact centre is currently available.
The main problem is the relationship between the parents.
Conclusions
The evidence shows that there is a very poor relationship between the parents of this child. Of particular concern is the evidence of the incident on 8th February 2010 which led to the protection order. The father consented to the order being made on a final basis and it is currently in force. Whilst the father denies the circumstances of the incident, I am satisfied that the mother’s account should be accepted. She was subjected to detailed cross-examination by the father’s counsel and I found her to be a credible witness. It is particularly regrettable that the parties’ child was in the centre of the violent incident.
The Court is required by sections 60CC(3)(j) and (k) and 60CG to consider the risk of family violence. In particular, s.60CG provides that, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that any parenting order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence. In this case, the order made by the Magistrates Court at [omitted] requires the father to be of good behaviour towards the mother and not commit domestic violence.
In my view, the existence of the order and the circumstances that led to its being made require that contact between the father and the mother should be minimised and that handover of the child between one parent and the other should take place at a neutral and public place. The current venue is the [B] Police Station. Clearly, it is inappropriate for the Police Station to continue to be the handover venue for any longer than is necessary, and I consider that a contact centre should be utilised for this purpose. There is no evidence as to the availability of the [L] Contact Centre, but it would be desirable for handovers to take place there once a vacancy arises. Until that time, the Police Station will need to be used.
The existence of the family violence order, the incident on 8th February, the poor communication between the parties and the poor relationship between them all lead me to find that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for her. Accordingly, the presumption in s.61DA(1) of the Act that it would be in the best interests of the child for the parents to have equal shared parental responsibility is rebutted (s.61DA(4)).
I propose to order that the mother have sole parental responsibility for the child.
This is a case about the amount of time that the child is to spend with the father. As with any parenting order, the Court must regard the best interests of the child as the paramount consideration (s.60CA).
The primary considerations are set out in s.60CC(2). The court must consider the benefit to the child of having a meaningful relationship with both parents as well as the need to protect her from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence.
It is clear from the parties’ evidence that each one is a capable and loving parent of their daughter. Neither parent criticises the other for their lack of parenting skills, which is to their credit. Thus, it is clearly of benefit of this little girl to have a meaningful relationship with both of her parents.
The problem, as Mr McLennon told the Court, is the relationship between the child’s parents. The writer of the Family Report has referred to the immaturity of each parent and the poor communication between the parents. As Mr Moriarty put it, [X] is a young child and should not be exposed to the antipathy between her parents. There must not be a repeat of the incident of the 8th February, which arose when the mother was collecting the child from the father. The physical altercation involving the parents would have been frightening and distressing to the child. She could have been injured.
It seems clear that the opportunities for the mother and father to meet should be minimised and handovers should take place in a neutral, and public, place.
Additional considerations for the Court to consider are set out in s.60CC(3).
The child is too young for her views to be ascertained.
The Family Report shows that the child appears to have a good relationship with each of her parents.
Regrettably, the parents do not seem to have a willingness or an ability to facilitate or encourage a close relationship between the child and the other parent. However, the orders proposed by the mother constitute an acknowledgment by her that it is in the child’s best interests to have a meaningful relationship with her father.
If this child were to be separated from either parent for any lengthy period, it is likely to have an adverse effect on her, as she clearly has a good relationship with each of her parents. The parents acknowledge that each one looks after her we4ll when she is in their care.
The mother has moved house on three occasions over a comparatively short period of time, which is a cause for concern. When she moved to [W], which is a country town some distance from Brisbane, it caused some practical difficulty, and presumably some expense, for her to spend time with the father. Now that the mother has moved to [E], this no longer appears to be the case.
Each parent has the capacity to provide for the child’s needs, although the mother complains that the father does not pay child support. Neither parent is in employment.
The child is a little girl who is not of mature years; she has not reached the age of two years. There are no relevant lifestyle or cultural matters.
The child is neither Aboriginal nor Torres Strait Islander.
Each parent displays a positive attitude to the child and the responsibilities of parenthood, although they have both shown an inability to adopt a positive attitude towards the other parent. There is evidence of the mother not ensuring that the child spent time with the father as agreed on Fathers’ Day in 2009, which led to serious differences between the parties.
I have already considered the effect of family violence and the current family violence order. The order in force is a final order and the father did not contest the order.
It would be preferable to make orders that would be least likely to lead to the institution of further proceedings between the parties in relation to the child. In my view, whilst this is often a counsel of perfection or perhaps a pious hope, the making of orders that would allow the child to live with her mother, as she has done all her life, and to spend a regular and meaningful amount of time with her father whilst avoiding friction between her parents, would seem to be the best way to achieve this aim.
The only other fact or circumstance that the Court would think relevant concerns the parties’ history of use of marijuana. This is an illicit drug in the State of Queensland, which is where the parties have resided, and each parent should refrain from administering that drug to him or herself whilst the child is in their care. As neither party has an abundance of funds, the money that has been spent on marijuana would better be spent on clothing or healthy food for the child and each of her parents.
The father has sought an order restraining the parties from removing the child from the State of Queensland. In his affidavit sworn
16th March 2010 he expressed a fear that the mother would leave the State before the proceedings were heard on 15th April 2010. Quite clearly, she did not do so. There is no evidence before the Court that would justify making an order restricting either party from removing the child from the Brisbane area.
In any event, it is difficult to see what benefit there would be in restraining the mother from taking the child to live in another State. The parties currently live around Brisbane. If I were to make such an order, it would not stop the mother from taking the child to live in a city such as Cairns, which would be sufficient to cause the father a considerable amount of difficulty in spending regular and frequent time with his daughter if he remained at his present address.
It would be preferable to wait until such an eventuality arises before making orders of that nature.
The orders suggested by the mother appear to generally inappropriate, although possibly over-complicated. In my view, the parenting orders should be kept relatively simple to enable the parties to comply with them without difficulty.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 8 June 2010
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