Marsh & Hornby & Ors
[2009] FMCAfam 951
•13 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MARSH & HORNBY & ORS | [2009] FMCAfam 951 |
| FAMILY LAW – Parenting – interim – 19 month old child – overnight time with father – issue of morning comfort breastfeed – best interests of the child. |
| Family Law Act 1975, ss.60B(2)(a), 60CA, 60CC(2), 60CC(2)(a), 60CC(2)(b), 60CC(3), 65DAA(2), 65DAA(3) Family Law Regulations 1984, reg.7 |
| D and D (Unreported, Family Court of Western Australia, Holden CJ, 23 January 1998) Goode v Goode (2006) FLC 93-286 H v D [2003] FMCAfam 290 SDW v JCW [2005] FMCAfam 210 |
| Applicant: | MS MARSH |
| First Respondent: | MR J. HORNBY |
| Second Respondent: | MR G. HORNBY |
| Third Respondent: | MS HORNBY (formerly MS KIRKE) |
| File Number: | MLC 10774 of 2008 |
| Judgment of: | Monahan FM |
| Hearing date: | 6 August 2009 |
| Date of Last Submission: | 13 August 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 13 August 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Smallwood |
| Solicitors for the Applicant: | Middletons |
| Counsel for the First Respondent: | Ms Leslie |
| Solicitors for the First Respondent: | Kenna Teasdale Lawyers |
ORDERS
THE COURT ORDERS THAT:
Paragraph 2 of the consent Orders of 8 April 2009 be discharged.
UNTIL FURTHER ORDER, the child [X] born in 2007 (“[X]”) spend time with the Husband as follows:
(2.1)each Tuesday (commencing 18 August 2009) from 8:00 am to 5:00 pm;
(2.2)each Thursday (commencing 20 August 2009) from 5:00 pm to 7:30 pm;
(2.3)on weekends as follows:
(2.3.1)Sunday 16 August 2009 from 9:30 am to 5:00 pm;
(2.3.2)Saturday 22 August 2009 from 9:30 am to 5:00 pm;
(2.3.3)Sunday 6 September 2009 from 9:30 am to 5:00 pm;
(2.3.4)Saturday 12 September 2009 from 9:30 am until Sunday 13 September 2009 at 8:00 am;
(2.3.5)Sunday 20 September 2009 from 9:30 am to 5:00 pm;
(2.3.6)Sunday 4 October 2009 from 9:30 am to 5:00 pm;
(2.3.7)
Saturday 10 October 2009 from 9:30 am to Sunday
11 October 2009 at 8:00 am;
(2.3.8)Sunday 17 October 2009 from 9:30 am to 5:00 pm;
(2.3.9)Sunday 1 November 2009 from 9:30 am to 5:00 pm;
(2.3.10)
Saturday 7 November 2009 from 9:30 am to Sunday
8 November 2009 at 8:00 am;
(2.3.11)Sunday 15 November 2009 from 9:30 am to 5:00 pm; and
(2.3.12)thereafter (commencing Saturday 21 November 2009) each weekend from 9:00 am Saturday to 8:00 am Sunday; and
(2.4)at such other times as agreed between the parties.
Pursuant of section 13C of the Family Law Act 1975 the Wife and the Husband:
(a)attend and complete, as soon as practicable, the Parenting Apart post separation parenting program (“the Program”) at an organisation as nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia;
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program;
(c)pay and otherwise be responsible for all costs associated with the Program; and
(d)provide an appropriate certificate of completion of the program to the other parties or their solicitors.
All interim parenting applications be otherwise dismissed.
AND THE COURT NOTES THAT:
A.The Final Hearing of this matter remains listed for 10:00 am on
23-25 November 2009.
B.In the event that [X] shows signs of distress upon waking while spending time with the Husband pursuant to Order 2 herein, the Husband shall notify the Wife and arrange for [X] to be returned forthwith.
C.The Wife is to supply the Husband with familiar toys and a pacifier and bottle as recommended by the family report writer Mr Holland to assist in his time with [X] pursuant to Order 2 herein.
D.The Second and Third Respondents were not required to appear at the Interim hearing of this matter on 6 August 2009 and were consequently not required to attend the Judgment hearing today.
E.Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Marsh & Hornby is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 10774 of 2008
| MS MARSH |
Applicant
And
| MR J. HORNBY |
First Respondent
| MR G. HORNBY |
Second Respondent
| MS HORNBY (formerly MS KIRKE) |
Third Respondent
REASONS FOR JUDGMENT
Introduction
These interim proceedings relate to an amended application by the wife, Ms Marsh (“the applicant” or “the wife”), filed on 27 April 2009. In addition to seeking various property orders, the wife is also seeking various parenting orders in relation to the child of the marriage, [X], born in 2007 (“the child” or “[X]”). More specifically, the wife is seeking parenting orders that [X] live with her and “that the time spent by the child with the husband be determined by this honourable Court.” The applicable wife’s application is supported by her affidavit sworn 25 November 2008 and filed 27 November 2008 (“her first affidavit”), her affidavit sworn 5 August 2009 and filed that day (“her second affidavit”) and the affidavit of Ms C, psychologist, sworn 31 July 2009 and filed on 5 August 2009, which attaches as Annexure “PMC1” a psychological report dated 31 July 2009.
The applicant wife also filed a “response to an application in a case” on 5 August 2009, presumably as a formal response to the interim orders sought by the husband in his response filed 27 March 2009.
The first respondent husband is Mr J. Hornby (“the husband”). In his response filed 27 March 2009, the husband opposes the orders sought by the applicant and is seeking different parenting orders in relation to [X]. He is also seeking interim orders in relation to [X]. In addition he is seeking different property orders. In relation to the parenting matters, the husband is seeking final orders that:
(1)both parties have equal shared parental responsibility of [X];
(2)that [X] live in an equal time arrangement with the parties.
The husband is also seeking interim orders that would increase the time that [X] currently spends with him, including gradually increasing the regime of overnight time. The respondent husband relies on his affidavit sworn 20 March 2009 and filed on 27 March 2009.
In addition to their affidavits, an affidavit of Trevor Holland, family consultant, sworn 4 August 2009 was filed on 6 August 2009 by the wife’s solicitors. Mr Holland’s affidavit attaches a family report relevant to the matter dated 2 June 2009.
At the interim hearing, the applicant wife was legally represented by Ms Smallwood of counsel, and the husband was legally represented by Ms Leslie.
Background
The wife was born in 1976 and is currently aged 32 years. She is currently working part time as an [administrative employee] in addition to being the primary carer of [X]. The wife is also a trained [healthcare professional].
The husband was born in 1975 and is currently aged 34 years. He works full time as an [manager]. The husband is a [tradesman].
The parties were married in 2001. They did not cohabit prior to their marriage. As previously stated, their child [X] was born in 2007. The parties separated shortly after [X]’s birth in 2008.
The matter first came before me in my duty list on 27 January 2009. The dispute at that time was in relation to property only, and on that occasion I made various interim orders and procedural orders, including setting the property dispute down for a final hearing on
22 June 2009.
The matter returned to my duty list on 8 April 2009. By that time the parties were also seeking various parenting orders. By consent I made orders giving both parties equal shared parental responsibility for [X], and for [X] to spend time with the husband as follows:[1]
[1] Minute of Consent Orders, 8 April 2009, paragraph 2.
“(i) Each Thursday from 5 pm until 7.30 pm;
(ii) on each weekend alternating between Saturday in one week and Sunday the next from 9.30 am to 5 pm; and
(iii) in the fourth week of a four-week cycle the time that would otherwise have occurred on the weekend should occur on the preceding Thursday from 9.30 am to 5 pm and time that would otherwise have occurred on that Thursday shall occur on the Tuesday after the fourth weekend.
(iv) such further and other times as agreed between the parties.”
The orders made on 8 April 2009 also provided for [X] to live with the wife at all other times. On that occasion, a further order was made in the following terms:[2]
“That the parties and the child attend upon a psychologist/family consultant for the purpose of the preparation of a family report with the cost of such assessment and report to be paid from the ING account in the Wife’s name.”
[2] Minute of Consent Orders, 8 April 2009, paragraph 3.
The matter came before me again for mention on 14 May 2009. On that occasion I made various procedural orders in relation to the property matter, including joining the husband’s parents as second and third respondents. I note that the husband’s parents are not parties in respect of the parenting matters. I also made orders vacating the hearing date allocated for 22 and 23 June 2009, given those circumstances.
The matter came before me again on 24 June 2009 for a return of subpoena, and on that occasion I made various orders of a procedural nature in relation to the property dispute.
The matter returned again to my duty list on 7 July 2009. On that occasion I was advised that a family report had now been received from Mr Holland and that an issue had arisen between the parties as to whether the husband should be able to start spending overnight time with [X] in line with a specific set of recommendations made by
Mr Holland. I was also advised that this overnight time was opposed by the wife because [X] was still being breastfed. Given these particular circumstances I agreed to set the parenting matters down for an interim hearing on 6 August 2009. The final hearing for property and parenting matters was also set down for hearing on 23 November 2009 (with an estimate of 3 days).
Interim hearing issues
As previously indicated, the dispute in this interim hearing is limited to parenting matters only, and more specifically whether [X]’s best interests demand that she start spending overnight time with the husband in the short and medium term, or whether her reliance on the wife for breastfeeding purposes would rule out any overnight time at this stage. In this respect the Court notes that the recommendations of the Family Consultant Trevor Holland in his report dated 2 June 2009, and in particular at paragraph 32, support [X] spending:
“…overnight time with Mr Hornby on the second weekend of the current arrangement, from Saturday at 10.00 am to Sunday at 10.00 am until November 2009.”
This specific recommendation is opposed by the wife, and in doing so she relies on the opinion of another psychologist, Ms C. At paragraph 14 of Ms C’s report dated 31 July 2009, Ms C states that [X] at
20 months of age is:
“… too young to be weaned from breastfeeding. Whilst [X] is initiating the breastfeed, it would be in her overall best interests to maintain this status quo of emotional stability. It is noted that the current breastfeeding routine precludes the father’s ability to have overnight visits with [X]. However, a different visitation roster could be negotiated whereby Mr Hornby sees his daughter for shorter periods more frequently during the week until overnight visits are gradually introduced when [X] is at least two and a half years of age.”
Consequently, the Court is being asked in this interim decision to, as the wife proposes, either delay the issue of the father spending overnight time with [X], at least until the final hearing in November when [X] turns two, or perhaps, as Ms C suggests, until [X] is at least two and a half years of age in mid-May 2010. Alternatively, the Court is being asked to follow the recommendations of Mr Holland as the husband proposes, and gradually introduce a regime of spend time that would include some overnight time that would enable the wife, to quote Mr Holland from paragraph 33 of his report, to:
“… ween [X] from her early morning comfort breast feed.”
Of course, as the Court indicated to the parties during the interim hearing, it is also open for the Court to consider a regime that would enable the husband to spend more frequent time with [X] that may also involve her having an overnight sleep, but to be returned in time for a morning comfort breastfeed with the wife, should [X] still demand such.
Agreed/ disagreed facts
There is no disagreement between the parties at this stage that both parties should have equal shared parental responsibility for [X]. Likewise, there is no disagreement between the parties in this interim hearing that [X] should primarily reside with the wife and spend time with the husband. The issue in dispute is how much time and under what circumstances [X] should spend time with the husband.
While Ms Smallwood for the mother indicated her client’s desire to keep the existing interim arrangements in place until the final hearing scheduled for November 2009, she did indicate to the Court that the wife might be willing to have [X] spend more time with the husband, perhaps on Tuesdays during work hours (Tuesdays being the day that the wife currently works and [X] is cared for by the maternal grandmother).
Ms Leslie for the husband indicated to the Court that the husband would be agreeable to reorganising his work arrangements to spend time with [X] during the day on Tuesdays. There was agreement between the parties that they live relatively close to one another.
Ms Smallwood for the wife advised the Court that the parties live about 10 minutes away from each other, presumably by car.
Lastly, the wife conceded through her counsel that the husband pays child support as assessed for [X]. The husband also asserts in his affidavit that he pays private health insurance cover for [X].
The parties’ submissions and available evidence
Before considering the parties’ submissions, the Court notes that at paragraph 10 of his affidavit, the husband asserts that the wife ceased breastfeeding [X] in October 2008 when she returned to work. This is denied, or perhaps clarified, by the wife in paragraph 10 of her second affidavit. In her second affidavit at paragraph 10 the wife confirms that she continues to breastfeed [X] “each morning”. She goes on to describe the history of her breastfeeding of [X] in this affidavit. At paragraph 18 of her second affidavit she states that:
“By the time [X] was ten months old I had weaned her to the extent that she was having a morning feed, a night time feed, and also occasionally during the night.”
At paragraph 19 the wife states:
“In around February this year, [i.e. 2009] I gradually weaned [X] from her evening feed and replaced that with a bottle of milk. However, she has continued throughout the year to feed in the morning. [X] wakes any time between 5:30 am and 8:00 am. As soon as she wakes she wants to settle into her morning feed. This is a very close and loving time for [X] and me. We have a cuddle and I talk softly to her and we both enjoy this nurturing time together before the day starts.”
Later, the wife asserts at paragraph 22 onwards in her second affidavit the difficulty she has had in settling [X] following the time spent with the husband. She also states in paragraph 24 that she has raised these concerns with Mr Holland. Indeed, it is the report of Mr Holland that has prompted the husband to seek to spend more time with [X] including overnight time. Mr Holland’s report was prepared pursuant to paragraph 3 of the consent orders I made on 8 April 2009.
As the Court did not order the report using its own resources, I can only assume that the parties agreed to having Mr Holland undertake the interviews and complete the report. Mr Holland provides background information and details about his interviews with the parties in paragraphs 5 through 20 of his report. At paragraph 14 of his report, Mr Holland states:
“Mr Hornby stated that he is aware of [X]’s developmental needs in relation to the spending time arrangement and believes that his proposal is developmentally sensitive to [X]’s capacities and needs in this regard.”
At paragraph 19 his report, Mr Holland states:
“Ms Marsh describes Mr Hornby as provocative and uncommunicative at change over. She is of the opinion that [X] would not be developmentally ready at two years of age for overnight stays, and stated that she still breast feeds [X] in the morning describing this as comforting routine for [X]. Ms Marsh is concerned about the premature withdrawal of this routine.
Ms Marsh found it difficult to articulate a timeframe or process that may lead to overnight stays.”
At paragraph 20 Mr Holland states:
“Ms Marsh stated that she strongly believed in, and supported, [X] having a relationship with her father however, she finds it difficult determining when overnight time should start, and is concerned not to push [X] beyond her developmental limits.”
Given [X]’s age, it was not possible for Mr Holland to interview her, but he records his observations of the parties with the child in paragraphs 21 through 23 of his report.
Mr Holland provides his evaluation and recommendations in paragraphs 24 through 44 of his report. Of most relevance to this interim hearing is, firstly, paragraph 26:
“The research and literature on overnight stays for this group is somewhat inconclusive and frequently debated, however, there are some general principles, commonly referred to as “moderate approach”, that are favoured by Family Law practitioners and clinicians in the field. This approach recognises a hierarchy of attachment, the need to treat each individual case on its merits and acknowledges the fundamental construct that children’s adjustment to parental separation is dependant on both parents communicating, cooperating, and acting in a child focused manner.”
At paragraphs 29 through 35, he states:
“29. Attachment formation to the primary attachment figure has four key stages generally completed in the first two years of the child’s life. At the end of this process, the child should have established a sense of basic trust with the primary care giver, and be prepared for the completion of the first stage of separation and individuation. At this stage, the child is ready to experiment with separations from the primary care giver and other significant other’s [sic].
30. These separations should be staged and incremental in order to gradually increase the child’s threshold to the discomfort experienced by the separation from the primary care giver. The act of parental separation often has the potential to delay or disrupt the attachment process and the care arrangements need to be carefully managed in order to ameliorate the impact of the child’s psychological and emotional wellbeing.
31. The history of the case clearly indicates that the primary attachment of [X] is with Ms Hornby [sic] [Marsh]. [X] presents as securely attached, as evidenced in her capacity to move between her parents, without any sign of distress or anxiety, and her level of adaptive functioning around the current arrangement. Developmentally she appears to be on track and is alert to her environment, responsive and curious, and her developmental milestones are all within the normal range.
32. The current arrangement has been developmentally sensitive and has met all the criteria for frequency in terms of [X] developing an internal construct of her relationship with her father, and it is recommended that this continue till the end of July 2009, at which time it is recommended that [X] spend overnight time with Mr Hornby on the second weekend of the current arrangement from Saturday at 10.00 am to Sunday at 10.00 am until November 2009.
33. This should provide adequate time for Ms Marsh to ween [X] from her early morning comfort breast feed, and enable
Mr Hornby to be part of this transitional process, by providing 3or 4 occasions of overnight time with him prior to starting the regime recommended below. Mr Hornby will need to be aware of the potential distress for [X] on waking and provide transitional objects such as familiar toys, a pacifier, or possibly a bottle, in conjunction with Ms Hornby’s efforts at incrementally withdrawing the breast over this period. It will be helpful if the parties can take a mature approach around this and start communicating appropriately around a strategy.
34. The withdrawal of this final feed should not unduly impact on [X]’s psychological or developmental progress if managed sensitively and appropriately, and is within the range of contemporary parenting practice for this age group.
35. When [X] turns two in November 2009, it is recommended that she spend overnight time with Mr Hornby each alternate weekend from Saturday at 10.00 am to Sunday at 3.00 pm, and on the Thursday following this from 10.00 am to 5.00 pm, and each alternate Tuesday from 10.00 am to Wednesday at 3.00 pm following the weekend he does not have [X].”
Mr Holland then goes on to make some specific recommendations for the period May 2010 onwards (when [X] turns two and a half) in paragraphs 36 onwards. Consequently, by way of summary, the Court notes that it is Mr Holland’s expert opinion that [X] should now spend some limited overnight time with the husband.
In contrast, we have the opinion of another psychologist, Ms C, urging significant caution and recommending against any overnight time to be spent by [X] with the husband, until [X] is at least two and a half years of age.
The Court notes, at this stage, that neither psychologist was the subject of cross-examination at this interim hearing. The Court further notes at this stage that Mr Holland had the benefit of interviewing both parties and observing their interactions with [X].
Despite Ms C’s references to Mr Holland as “a social worker”, he is a family consultant appointed under regulation 7 of the Family Law Regulations 1984. Ms C, the Court acknowledges, does have significant qualifications and experience. She did not, however, have the benefit of an interview with the husband. It is not clear from
Ms C’s report whether she observed [X]. If she did, the Court would have some concerns, as it was not appraised of such an advance and presumably, neither was the husband. That having been said, the Court will consider Ms C’s evidence with respect to the breastfeeding dispute, despite its late filing. Ms Leslie for the husband provided the Court with a minute of orders sought by the husband. He seeks:
“1. That commencing on the weekend of 15 August 2009, on the middle of the three weekends the husband spends with the child, pursuant to paragraph 2 of the orders dated 8 April 2009, [X], born in 2007, his time commence at 10 am on Saturday and conclude at 10 am on Sunday with such an arrangement to continue until November 2009.
2. That commencing in the first week of November 2009, the husband spend time with [X] as follows:
a) on each alternate weekend from 10 am Saturday until 3 pm Sunday;
b) on the Thursday following the weekend in paragraph (a), and in each alternate weekend thereafter, from 10 am until 5 pm.
c) in each alternate week, being the week following the weekend where the husband does not spend time with [X] from 10 am Tuesday until 3 pm Wednesday.
d) For Christmas 2009, from 11.30 am Christmas Day until 3 pm Boxing Day.
e) Such further and other times as agreed between the parties.”
The orders sought also include the following notation:
“A. That in the event that [X] shows signs of distress upon waking with the husband, during time pursuant to paragraph 1 herein, the husband shall notify the wife and arrange [X] to be returned forthwith.
B. That the wife supply the husband with familiar toys, a pacifier or bottle as recommended by Mr Holland to assist in his time with [X], pursuant to paragraph 1.”
Ms Leslie submitted that the evidence disclosed a pattern of the wife being unnecessarily difficult in allowing the husband to spend time with [X]. Ms Leslie submitted that the current arrangements were more or less in line with the wife’s wishes. Ms Leslie then submitted that following the release of Mr Holland’s report, the husband’s lawyers had written to the wife’s lawyers, seeking additional time to be spent by [X] with the husband, but there had been no response. Ms Leslie reminded the Court that both parties have agreed to equal shared parental responsibility for [X], but submitted that the wife was “blocking” the husband developing a better relationship with [X].
Ms Leslie referred a number of times to Mr Holland’s report and particularly his recommendations in paragraphs 32 and 33. She submitted that there is absolutely no evidence that [X] is at any risk of harm in having some limited overnight time with the father and that such an outcome was “the next progression” in the child’s relationship with her parents.
Ms Smallwood for the wife confirmed [X] is only breastfed once a day, in the morning. Ms Smallwood also confirmed that the breastfeeding takes place some time between 5.30 am and 8.00 am, depending on when the child wakes from her overnight sleep.
Ms Smallwood submitted that [X]’s best interests demanded that the child be allowed to withdraw from her morning feed at a time of the child’s own choosing. Ms Smallwood submitted that there was little to be gained by considering the issue now and not waiting until the final hearing scheduled for November 2009. Ms Smallwood further argued that the risks to [X] of being weaned too early from her mother’s morning breastfeed were too great for her at this stage. In support,
Ms Smallwood asked the Court to rely on the expert opinion of Ms C and not that of Mr Holland.
Ms Smallwood did, however, admit that the current arrangements were, in her words, “cobbled together” earlier this year, but that any increase in time to be spent, in particular, overnight time was too risky. That having been said, as indicated, Ms Smallwood did acknowledge that [X] is currently cared for by the maternal grandmother on Tuesdays, while the wife works. In this respect, the Court notes paragraph 10 of the wife’s second affidavit, where she states that she works “two days a week” and that the material grandmother “cares for [X] during this time”. The Court was not advised of what other day of the week the wife works, but presumably it may be Thursdays.
Lastly, Ms Smallwood asked the Court to consider the cases of H & D [2003] FMCAfam 290 and SDW & JCW [2005] FMCAfam 210. Those cases are also referred to in Ms C’s report at paragraph 13.
In her response, Ms Leslie asked the Court to distinguish the cases (referred to by Ms Smallwood) based on their particular facts. Ms Leslie submitted that there is no need at all for any cessation of breastfeeding or indeed, any forced weaning of [X] from her morning comfort feed. She also asked the Court to note that Mr Holland was the expert appointed by the parties to provide the Court with recommendations about the parties’ future parenting of [X].
Following their submissions, I asked the parties’ legal representatives to get instructions about [X]’s pattern of sleeping. I was advised that [X] generally has two sleeps a day, one between 11.30 am and 1.30 pm, and the other overnight.
The law
The Full Court of the Family Court decision of Goode v Goode (2006) FLC 93-286 (“Goode”) guides the Court’s approach in making interim decisions and interim orders in relation to parenting disputes. At paragraph 81, the Full Court noted:
“In making interim decisions the court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child.”
This matter is such a case. More specifically, this raises the reality that the Court cannot fully determine issues of credit today, as the evidence being presented by the parties to the Court has not been tested by cross-examination. Moreover, in this particular case, we have a different opinion between two psychologists. That having been said, in the same paragraph, paragraph 81 of the Goode decision, the Full Court went on to say:
“However, the legislative pathway must be followed.”
In other words, the relevant provisions of the Family Law Act 1975 (“the Act”), post the 2006 shared parenting amendments must be followed in an interim hearing.
There is considerable disharmony, it would appear, between the parties in this case, and no doubt the history of this matter will be the subject of evidence in cross-examination at the final hearing, should such be needed. The Court senses that the parties’ parenting dispute has arisen during a protracted property dispute. There is no issue of equal shared parental responsibility to determine today. The dispute today is simply limited to the issue of [X]’s time with her father, and under what circumstances that time should be spent.
The Full Court at paragraph 82 of the Goode decision sets out the approach that the Court must take in determining interim cases. The Full Court indicated that the starting point was to identify the competing proposals, identify the issues in dispute, and identify any agreed or uncontested relevant facts. I note that the Court has previously indicated such in its decision today. The Court then must give its decision based on the structured discretion provided in the legislation. At this point, the Court notes that s.60CA of the Act provides:
“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
To determine the child’s best interests, the Court must consider the primary considerations or factors set out in section 60CC(2) of the Act and the additional considerations referred to in section 60CC(3) of the Act, where relevant.
The Court will canvass these briefly now.
Primary consideration: section 60CC(2)
Section 60CC(2)(a) requires the Court to consider:
“The benefit to the child of having a meaningful relationship with both of the child’s parents.”
At this point, let me note that meaningful does not mean equal, but clearly it signifies that both parties should be involved with their child and consequently signifies an expectation of time to be spent. The right of a child to spend time with each parent and extended family is clearly a right enunciated in section 60B(2)(a) of the Act. Consequently, the Court will, in all likelihood, need to give considerable weight to this factor at the final hearing, should such be needed. At this time, the Court notes that the husband is seeking final orders to have [X] live with him on a week-about basis. This interim decision is merely considering whether the current spend time arrangements should be increased or remain as is.
The current arrangements are somewhat complex and do not provide for any overnight time to be spent. Indeed, they are limited to daylight hours only, with the exception of two and a half hours per week between 5 pm and 7.30 pm. One assumes that 7.30 pm is just before [X] goes to sleep for the evening in the care of the mother. The Court notes at this time section 65DAA(2) of the Act, which states:
“If:
(a) a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.”
In this case the parties live in close proximity, so there is no real issue of practicability to consider, apart from, perhaps, whether there may be some distress to [X] being returned to the mother’s care, perhaps, outside of normal business hours.
Section 65DAA(3) states, and I quote:
“For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(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.”
The Court is also required, under section 60CC(2)(b) of the Act, to consider the need to protect the child from physical and psychological harm from being subjected or exposed to abuse, neglect or family violence.
There is no doubt that it would be in [X]’s best interests to develop a meaningful relationship, not just with her mother, but with her father also. But that needs to be balanced in respect of protecting [X] from any physical or psychological harm and the like. There is no issue of family violence relevant to these proceedings. There is, however, an argument that [X] may be psychologically harmed by being denied her morning comfort breastfeed. In this respect, the Court has two expert opinions before it. Both appear to be based on an assumption that the morning comfort breastfeed will cease, and if so, what difficulty [X] might have in the short and long term.
As Ms Swallwood (and Ms C in her report) correctly pointed out, there are at least two judicial decisions that have considered the relevance of breastfeeding on demand. Firstly, H v D [2003] FMCAfam 290 (“H v D”), a decision of McInnis FM, and secondly, SDW v JCW [2005] FMCAfam 210 (“SDW v JCW”), a decision of Ryan FM, as she then was. In H v D, a case involving a 17 month old toddler, his Honour stated at paragraph 31 of his decision that:
“A lack of insight demonstrated by the Applicant Father in relation to that issue was evident during the course of submissions this day where he submitted that no medical report had been tendered or relied upon in relation to breast feeding. To even suggest that a medical report for a child this age would be required shows in my view a complete lack of understanding of the very fundamental commonsense approach that one would normally adopt to the social, physical, mental and medical desirability of children being breast fed at this age. The fact that the child is on demand breast feeding is not a matter which I would regard as detrimental on any basis to the child. It is a relevant factor to take into account and is relevant in relation to the interests of the child and significant to the issue of the happiness and contentment of the Respondent Mother. The Applicant Father's evidence in relation to that issue as indicated demonstrates a complete lack of insight.”
In SDW v JCW, a case involving a 12 month old child at the time of the hearing, the child was 10 months old at the time of the family report. The father alleged that the mother’s breastfeeding was unnecessary at the child’s age and was designed to limit his time to be spent with the child (I am specifically referring to paragraph 55 of the judgment).
The Court also notes an unreported decision of Holden CJ (of the Family Court of Western Australia) in D and D, decided on 23 January 1998.[3] In this case, his Honour, after considering the expert evidence in relation to a 12 month old child made the following comments on page 9 of his decision, which perhaps sums up the dilemma faced by the Court today:
“I am urged not to force the mother to wean X as that may cause him psychological harm for the future. On the other hand, I am told that to continue access, as proposed by the mother, could well, in itself, cause psychological harm for the future.”
[3] D and D (Unreported, Family Court of Western Australia, Holden CJ, 23 January 1998)
Additional considerations: section 60CC(3)
With respect to the additional considerations in section 60CC(3) of the Act, I would firstly note that the views of “the child,” while significant, will be difficult to determine in this case, given [X] is so young. Nevertheless, the Court is persuaded by the argument that [X] should be the one to primarily determine when she ceases her morning comfort breastfeed.
As to the other relevant considerations under section 60CC(3), the Court notes that the parties have presented somewhat different stories and the parties’ evidence will need to be tested at any final hearing, should such be necessary.
In respect of the factors “likely effect on any changes in the child’s circumstances”, and “any other fact or circumstance”, these are relevant to the reasons presented to the Court by the wife that the daily comfort breastfeed may rule out [X] spending any overnight time with the husband at this stage.
Conclusion
After considering the parties’ evidence, the submissions of their legal representatives, the family report of Trevor Holland, and the psychological report of Ms C, the Court is satisfied that some incremental change is needed to the consent orders made by the parties back in April this year. While four months is a short period of time for those who sit in this Court room today, four months is a relatively long time in the life of a near 18 month old toddler. Indeed, if the Court were to wait until November to consider the issue, that would postpone any necessary change for another three months.
Both parties clearly love their child and want to do their very best in raising her. The Court does not doubt the wife’s sincerity in wanting to have the child make the decision to withdraw from her daily comfort breastfeed. In addition, the Court does not doubt the father’s sincerity in wanting to spend more time with his daughter, particularly in these formative years.
The Court sees no reason to reject the recommendations made by Mr Holland. He is not recommending the immediate cessation of [X]’s daily comfort breastfeed. He is providing the parties with his expert and considered opinion that a transitional process will be of benefit to [X].
In contrast, at paragraph 14 of her report Ms C is quite strong in her opinion that [X] is:
“Too young to be weaned from breastfeeding.”
Ms C favours the maintenance of the status quo, which the Court takes as favouring the maintenance of the daily breastfeed regime rather than the consent orders “cobbled together” by the parties last April. As previously stated, the Court does agree with Ms C that [X] should determine the cessation of her daily comfort breastfeed. Consequently, it should continue if possible. The Court disagrees with Ms C’s comment, however, in paragraph 14 of her report that:
“It is noted that the current breastfeeding routine precludes the father’s ability to have overnight visits with [X].”
It is clear from the evidence that the husband could enjoy some modest overnight time with [X] and return her to the wife in time for a morning comfort breastfeed. The parties live in close proximity, and the wife’s own evidence reveals that [X] appears to sleep well through the night and rise some time between 5.30 am and 8 am. She is also fed by a bottle before bed. That having been said, the Court does agree with Ms C’s comment that a regime of more frequent time should be a feature of [X]’s time with her father.
As stated, however, the Court does not agree with Ms C that the circumstances of the case preclude overnight time until:
“[X] is at least two and a half years of age.”[4]
Consequently, the current interim arrangements should be modified to reflect [X]’s best interests.
[4] Psychological Report of Ms C dated 31 July 2009, at paragraph 14, being Annexure “PMC1” to the affidavit sworn by Ms C on 31 July 2009 and filed 5 August 2009
The Court is happy to stand the matter down briefly to enable the parties to have some discussions about this decision. In default of agreement, the Court will make orders allowing [X] to spend time with the husband as follows:
(1)Each Tuesday from 8 am to 5 pm;
(2)Each Thursday from 5 pm until 7.30 pm;
(3)
Weekends as follows: Sunday, 16 August 2009 from 9.30 am until 5 pm. Saturday, 22 August 2009 from 9.30 am until 5 pm. Week off. Sunday, 6 September 2009 from 9 am until 5 pm. Saturday, 12 September 2009 from 9.30 am until Sunday 13 September 2009 at 8 am. Sunday, 20 September 2009 from 9.30 am until
5 pm. Week off. Sunday, 4 October 2009 from 9.30 am until
5 pm. Saturday, 10 October 2009 from 9.30 am until Sunday,
11 October 2009 at 8 am. Sunday, 17 October 2009 from 9.30 am until 5 pm. Week off. Sunday, 1 November 2009 from 9.30 am until 5 pm. Saturday, 7 November 2009 from 9.30 am until Sunday, 8 November 2009 at 8 am. Sunday, 15 November 2009 from 9.30 am until 5 pm. And, thereafter, commencing Saturday, 21 November each weekend commencing 9 am Saturday until
8 am Sunday;
(4)At such other times as agreed between the parties.
The Court can reconsider these days and times when the matter returns to Court later in the year. Clearly the parties need to turn their minds to the holiday season at year’s end, and the period before and after [X] turns two and a half.
There will be notations to the Orders as proposed by the husband.
Lastly, the Court will make the usual order today requiring both parties to complete a post-separation parenting course at their expense as soon as possible.
I reserve the right to settle the reasons for this interim decision.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Monahan FM
Associate: Shani Drogemuller
Date: 15 September 2009
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