Malone and Irwin
[2018] FCCA 397
•28 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MALONE & IRWIN | [2018] FCCA 397 |
| Catchwords: FAMILY LAW – Parenting – time with father – parental responsibility. |
| Legislation: Family Law Act 1975, ss.65DAA, 65DAC, 65Y |
| Cases cited: MRR & GR [2010] HCA 4 |
| Applicant: | MS MALONE |
| Respondent: | MR IRWIN |
| File Number: | PAC 4710 of 2016 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 1 February 2018 |
| Date of Last Submission: | 1 February 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 28 February 2018 |
REPRESENTATION
| Appearing for the Applicant: | In person |
| Appearing for the Respondent: | In person |
ORDERS
All prior parenting orders are discharged.
That the Applicant (“mother”) and the Respondent (“father”) shall have equal shared parental responsibility for the child [X] born on (omitted) 2014.
That the child shall live with the mother.
That the child shall spend time with the father as agreed between the parents in writing, but failing agreement:
(a)Until 1 October 2018:
(i)For 7 consecutive days from 12 noon to 5pm on each day for one block period in or around August 2018;
(b)Between 2 October 2018 to 1 October 2019:
(i)For 7 consecutive days from 10am to 5pm on each day for two block periods of 7 days;
(c)Between 2 October 2019 and until she commences school:
(i)For 7 consecutive days from 8am to 6pm on each day for two block periods of 7 days per year;
(d)Thereafter:
(i)For no less than 2 block periods of 7 days each calendar year, with such block periods of time not being consecutive.
For the purpose of paragraph (4) above, the father is to notify the mother no less than 42 days prior to his proposed travel dates to Australia, where he proposes to stay with the child and the dates which the child shall spend with him. Upon the father providing such information to the mother, the mother is to make the child available to spend time with the father during the period nominated by the father.
Notwithstanding any other order, provided the father is present in Australia, the child shall spend time with the father:
(a)on the child’s birthday each year for not less than three hours as agreed between the parents but failing agreement from 3pm to 6pm; and
(b)on Christmas Day each year for not less than three hours as agreed between the parents but failing agreement from 3pm to 6pm.
Notwithstanding any other order, the child shall spend time with the mother:
(a)On the child’s birthday each year for not less than three hours as agreed between the parents, but failing agreement from 6pm to 9pm; and
(b)For Christmas each year for not less than 12 hours as agreed between the parents but failing agreement from 3pm on Christmas Eve until 3pm on Christmas Day.
The father shall be at liberty to communicate with the child on no less than three occasions each week that the child is not spending time with him, with such communications to be via FaceTime, Skype or other similar application. The father shall provide the mother no less than 24 hours’ notice of the days and times he proposes to communicate with the child in the manner provided herein. The father is to use his best endeavours to ensure that such communications fit in with the child’s daily routine.
For the purpose of paragraph (8) the mother shall make the child available and shall facilitate such communications between the child and father by ensuring that the child has an available and fully charged electronic device for her use.
During the times that the child is spending with the father, the mother shall be at liberty to communicate with the child on no less than 3 occasions with such communications to be via FaceTime, Skype or other similar application. The mother shall provide the father no less than 24 hours’ notice of the days and times she proposes to communicate with the child in the manner provided herein. The mother is to use her best endeavours to ensure that such communications fit in with the child’s daily routine.
For the purpose of paragraph (10) the father shall make the child available and shall facilitate such communications between the child and mother by ensuring that the child has an available and fully charged electronic device for her use.
The parties shall keep each other informed of their residential address and telephone numbers at all times, and shall notify the other party within 24 hours of any change.
Remove all outstanding issues from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Malone & Irwin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
PAC 4710 of 2016
| MS MALONE |
Applicant
And
| MR IRWIN |
Respondent
REASONS FOR JUDGMENT
Introduction
There are two discrete issues for determination in the current proceedings, in respect of little [X] who was born on 5 August 2014.
[X] lives with her mother in Australia, and [X]’s father lives with his wife and child in (country omitted). The father has never been resident in Australia.
The parties met and had a relationship while the mother was working in (country omitted). At the time the father was undertaking studies and also working in that country. The father has remained living there and after the parties brief relationship, he has re-partnered and is now married and has another child.
[X] has only ever spent time with the father when he has visited Australia. For the first time in her life, while these Reasons for Judgment were reserved, she was to spend time with the father without the mother’s presence.
A live issue in the proceedings is parental responsibility. The mother submits to the Court that because she has always been primary carer for [X] and will remain so, and because the father lives in another country, it would be impractical for the parties to have equal shared parental responsibility. She says that she should have the final say because [X] is living with her.
The father on the other hand urges the Court to make an order for the parties to have equal shared parental responsibility. He says that he would like the opportunity of having a say in long term decisions regarding [X], and that with his background he is a person who can add value to such decisions and provide [X] with opportunities the mother alone may not be able to provide to her.
The father proposes to travel to Australia two to three times per year to spend time with [X]. He proposes that he spend time with her on no less than 7 days on each such occasion. The father says that the two major times he proposes to travel are for [X]’s birthday and around the Christmas/New Year period.
The mother proposes for [X] to spend time with her father on a graduated basis but initially in her presence, as she says that the child does not know the father and that she would be anxious about spending time with him. The mother says that [X] is very attached to her.
The only evidence about the child comes from the parties, and in particular from the mother who is [X]’s primary carer. The mother impressed the Court as a somewhat anxious woman who did not want to let go of the control of parenting [X] alone. She kept referring to [X] as “my daughter”. She did not impress the Court as a parent who fully understood the importance of a meaningful relationship between the child and the child’s father or how such a meaningful relationship might best be facilitated.
The reluctance by the mother to permit [X] to spend any time with the father to date without her being present was, on the evidence, not a reasonable stance for her to have taken. While the Court accepts that [X] has spent limited time with the father and that she is still very young, there is no objective evidence to suggest that the father was not capable of meeting [X]’s needs during short periods of time or that he somehow posed an unacceptable risk of harm to the child.
It is the Court’s view that [X] will benefit from spending time with her father on a graduated basis, including overnight time. While there may be a period of adjustment for the child on each such occasion, if the relationship between father and child is left to develop without improper interference or restriction, the Court is of the view that the father will ensure that the child’s time with him is a happy and worthwhile experience. The Court is also of the view that once things settle down after the final hearing that the mother too will ensure that the child’s time with the father is a happy and worthwhile experience.
In respect of parental responsibility, there is of course, contained in the legislation, a presumption of equal shared parental responsibility which may be rebutted in certain circumstances. The presumption is rebutted if there are reasonable grounds to believe that a parent has engaged in family violence or by evidence that satisfied the Court that it would not be in the best interest of the child for the parents to have equal shared parental responsibility.
The Court is not satisfied that the presumption of equal shared parental responsibility has been rebutted. Indeed, the Court finds that [X] will benefit from her father’s involvement in any long term decisions in respect of her welfare, health and development. The parents while having some difficulty in communicating with each other, certainly have the capacity to comply with their obligations under s.65DAC. As such, an order for equal shared parental responsibility will be made.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[1]
[1] MRR v GR [2010] HCA 4 at [15]
Equal time and significant and substantial time are simply not practicable. The best that the Court can do is to make orders which will facilitate a relationship between [X] and the father in circumstances where he lives in another country and will only be able to travel to Australia two to three times per year.
There was also argument before the Court for the mother to be able to travel internationally with the child. There was no firm proposal or any evidence as to when any such travel would occur, nor was any travel planned at the time of final hearing. The mother however opposes any orders which would permit the child to travel with the father, particularly to (country omitted) or to his country of origin, (country omitted).
The Court does not have before it sufficient evidence to decide one way or the other as to whether an order permitting the mother to travel with the child is an appropriate order. As such, no order will be made in that regard.
The parents are reminded of s.65Y of the Act and the provisions contained therein permitting a party to travel with the child internationally with consent of both parents. It may be that any proposed travel by the mother would be agreed to by the father once he is apprised of such travel plans. It may be that the mother will need to bring an application if such consent is not given, but these are all matters for another day which may or may not arise.
For all of those reasons, orders as set out at the forefront of these Reasons will be made.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 28 February 2018
Key Legal Topics
Areas of Law
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Family Law
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