Manos and Durand
[2009] FMCAfam 287
•17 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MANOS & DURAND | [2009] FMCAfam 287 |
| FAMILY LAW – Interim children’s matters – equal shared parental responsibility – equal time not practicable – substantial and significant time not practicable – who child should live with – to live with father – regular time with mother. |
| Family Law Act 1975, ss.60CA, 60CC, 65DAA |
| Applicant: | MS MANOS |
| Respondent: | MR DURAND |
| File Number: | DGC 388 of 2009 |
| Judgment of: | Turner FM |
| Hearing date: | 17 February 2009 (Dandenong) |
| Date of Last Submission: | 17 February 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 17 April 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr. Le Souef |
| Solicitors for the Applicant: | Meier Denison Guymer |
| Counsel for the Respondent: | Mr. Clarke |
| Solicitors for the Respondent: | Baird & McGregor |
ORDERS
Until further order:
That both parents have equal shared parental responsibility for the child [X] born in 2000.
[X] live with the father.
That [X] spend time with his mother for half of each school term holidays at times to be agreed and failing agreement for the first half of each holiday.
(a)That in alternate years commencing 2010 [X] spends Christmas Day with his mother.
(b)That [X] spend time with his mother from 5.00pm Friday until 5.00pm Sunday every weekend.
Changeovers are to occur at an agreed location at [M], and failing agreement, outside [M] Police Station. All changeovers shall occur at 5.00 pm.
IT IS NOTED that publication of this judgment under the pseudonym Manos & Durand is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
DGC 388 of 2009
| MS MANOS |
Applicant
And
| MR DURAND |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application by the wife for parenting orders relating to the parties child [X] born in 2000 (8 years old).
The parents separated in 2003. Since the date of separation and until February 2009 [X] lived with his mother and spent time with his father at his paternal grandmother’s home at [C] in Victoria.
On around 6 February 2009, the mother agreed with the father that [X] could go and stay with the father. On Sunday 8 February 2009, the father advised the mother that he would not be returning [X] to her as he was going to live with him. The father says that the mother agreed to [X] living with the father at [C] for at least the first school term of 2009. [X] now lives with his father at [C], and attends school nearby.
The mother seeks interim orders that:
·[X] live with the mother; and
·That [X] spend substantial and significant time with the father as agreed or as ordered by the Court.
By Response filed by leave of the Court on 17 February 2009 the father seeks interim orders that
·[X] live with the father;
·That the mother spend substantial and significant time with [X] as agreed or as ordered by the Court; and
·That all parties, or their servants be restrained from removing or attempting to remove the children (sic; “child”) out of the State of Victoria without the written consent of the other party or the Court firstly (sic; “first”) having been obtained.
The mother deposes in her affidavit filed on 12 February 2009 that she will not be moving to Queensland for many years.
The mother deposes that the removal of [X] from her residence has had a detrimental affect on her children from a previous relationship, especially [Y]. That is not a relevant consideration under section s.60CC(3)(d) which is confined to the likely effect on [X] of his separation from:
i)Either of his parents; or
ii)Any other child…with whom he has been living,
but could come within s.60CC(3)(m) “any other fact or circumstance that the Court thinks is relevant”. As “the best interests of [X]” is the paramount consideration (s.60CA), the effect on the other children of the mother does not carry significant weight.
The applicant deposes that she is concerned about the effect on [X] on being separated from his half brothers, but gives no detail of that effect on [X].
The applicant deposes that [X] not being returned has severed his relationships at [F] School.
The father responded by affidavit filed by leave on 17 February 2009.
The respondent deposes that [X] lived with the paternal grandmother and two foster children from July 2002 until 2005 and attended
[C] Kindergarten during that time. He disputes that [X] misses his half brothers and states that they seldom contact [X] when he is spending time with the father (Court transcript page 6, line 10).
Minutes of the applicant’s proposed orders were handed to the Court. They seek orders:
·That the father delivery [X] to the [F] Police station by 18 February 2009;
·That the mother and father have equal shared parental responsibility for [X];
·That [X] live with the mother;
·That the father spend time with [X]:
· Each alternate weekend from after school Friday until 5pm Sunday
· For half the school term holidays as agreed or failing agreement for the first half.
It is not disputed that since the beginning of 2005 until 6 February 2009 [X] lived with his mother and attended [F] School.
The Court has identified the competing proposals. The father wants [X] to live with him at [C] and spend time with his mother. The mother wants [X] to live with her at [F] and spend time with the father. The issue is therefore confined to with whom [X] is to live?
An issue in dispute is where [X] has lived up to this point?
The mother says that he has lived with her all of the time. The father says that he lived with him from 2002 until 2005.
It is uncontested that [X] has been living with the father at [C] since February 2009. It is uncontested that he previously lived with his mother in [F] and attended school there.
Primary considerations section 60CC(2)
The benefit to the child of having a meaningful relationship with both parents - section 60CC(2(a)
Both proposals will allow [X] to have a meaningful relationship with both parents.
The need to protect the child from abuse, neglect or family violence - section 60CC(2)(b)
There are no issues of abuse, neglect or family violence.
Additional considerations section 60CC(3)
Any Views expressed by the child – section 60CC(3)(a)
There is no tested evidence about views expressed by [X].
The nature of the relationship of the child with each parent and other persons - sections 60CC(3)(b)(i) and (3)(b)(ii)
[X] appears to have a good relationship with his parents, his half brothers and possibly the foster children, and with his maternal grandmother. His half brother [Y] appears to be a dependent on him. The reverse has not been shown.
The willingness and ability of each of the parents to facilitate and encourage the relationship between the child and other parent - section 60CC(3)(c)
Both parties appear willing to facilitate a close and continuing relationship between [X] and the other parent.
Likely effect of changes in child’s circumstances, including the likely effect on the child of separation from either parent or other persons – section 60CC(3)(d)
There is no uncontested evidence that separation from his half brothers will have a detrimental effect on [X]. As stated earlier, the effect on them is not a consideration under this provision. The proposal of each party is that [X] spend a lot of time with the other parent.
Both proposals would result in a degree of separation from the other parent.
Practical difficulty and expense of child spending time and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis - section 60CC(3)(e)
Whether [X] lives with his mother or father, the difficulty and expense in [X] spending frequent time with the other will be similar.
Capacity of the parents and others to provide for the needs of the child, including emotional and intellectual needs - section 60CC(3)(f)
Both parents appear to have the capacity to provide for [X]’s needs. If [X] lives with the father at [C], the paternal grandmother will be there to contribute to his needs. If [X] lives with the mother, his half brothers will be there for him to relate to (they are however 4 and 2 years old). The mother has three adult sons from another relationship who have [X] stay overnight. There would be nothing to prevent that continuing if [X] lives with his father and spends time with the mother.
Maturity, sex, lifestyle and background of child and parents - section 60CC(3)(g)
Not relevant.
Aboriginal or Torres Strait Islander child - section 60CC(3)(h)
Not relevant.
Attitude to the child and the responsibilities of parenthood demonstrated by each parent - section 60CC(3)(i)
Both parties have demonstrated a responsible attitude to [X] and to the responsibilities of parenting.
Family violence - sections 60CC(3)(j) and (k)
Not relevant.
Whether preferable to make orders less likely to lead to further proceedings in relation to the child – section 60CC(3)(l)
Neither party’s proposal is more likely than the other to put an end to proceedings.
Any other fact or circumstance that the Court thinks is relevant – section 60CC(3)(m)
Apparently [X] is happy living at [C] and going to school there. The final hearing in this matter is listed on 5 and 6 August 2009. His views will be tested through a family report available at that time. It is undesirable to disrupt [X]’s living arrangements by ordering his return to [F], when that order may be reversed in 5 months. If he stays at [C] until then, he will have had a stable arrangement for the 6 months from 6 February 2009. The Court decides that it is in the best interests of [X] that he live with his father at [C] until further order.
Other considerations sections 60CC(4) and (4A)
Extent of fulfilment of parental responsibilities – sections 60CC(4) and (4A)
Both parties have fulfilled their responsibilities as parents. The father has taken the opportunity to spend time with [X] while he was living with the mother. There is evidence that the mother did not spend much time with [X], while he lived with the father (s.60CC(4)).
The parents separated in 2003. There is evidence that [X] lived with the father from July 2002 until 2005 and then with the mother from 2005 to 6 February 2009 (which are periods of similar duration). It is alleged that the father refused to return [X] to the mother around
8 February 2009, against her wishes (s.60CC(4A)).
The presumption of equal shared parental responsibility for [X] applies, and is not rebutted.
Because [X] is at school at [C] and because of the travel time between [F] and [C] it is not practicable for him to spend equal time with each parent.
For the same reasons it is not possible for [X] to spend substantial and significant time (as defined) with each parent.
“Substantial and significant time” is defined in s.65DAA(3) to include both:
“…
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.”
As [X] is at school in [C] it is not possible for him to spend weekdays with his mother. Unless the mother and [X]’s birthdays fall on weekends, it will not be practicable for [X] to spend part of those days with his mother.
The Court orders that until further notice:
(1)That the parents have equal shared parental responsibility for the child [X] born in 2007.
(2)[X] live with the father.
(3)That [X] spend time with his mother for half of each school term holidays at times to be agreed, and failing agreement for the first half of each holiday.
(4)That in alternate years commencing 2010 [X] spends Christmas Day with his mother.
(5)That [X] spend time with his mother every weekend.
(6)Changeovers are to occur at an agreed location at [M], and failing agreement outside [M] Police Station. All changeovers shall occur at 5.00 pm.
The Court made interim orders by consent on 17 February 2009 including for the preparation of a family report and listing the matters for final hearing on 5 August 2009.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Turner FM
Deputy Associate: Eyal D’vier
Date: 17 April 2009
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