Martino and Tankard
[2012] FMCAfam 715
•23 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MARTINO & TANKARD | [2012] FMCAfam 715 |
| FAMILY LAW – Interim parenting orders – consideration of whether injunctions should be made on controversial evidence. |
| Family Law Act 1975, s.68B |
| Goode and Goode (2006) FLC 93-286 Morgan and Miles (2007) FLC 93-343 |
| Applicant: | MR MARTINO |
| Respondent: | MS TANKARD |
| File Number: | PAC 2955 of 2009 |
| Judgment of: | Dunkley FM |
| Hearing date: | 23 February 2012 |
| Date of Last Submission: | 23 February 2012 |
| Delivered at: | Dubbo |
| Delivered on: | 23 February 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kenny |
| Solicitors for the Respondent: | Ms Dent |
ORDERS
All prior parenting orders are hereby suspended.
The parties shall have equal shared parental responsibility for the child X born (omitted) 2007 (hereinafter “the child”).
The child shall live with the mother.
The child shall spend time with the father as follows:
(a)From 6:00pm today to 5:00pm 26 February 2012 or such earlier time as the parties agree;
(b)In Melbourne from 6:00pm on Saturday 3 March 2012, unless another time is agreed, until Monday before school and thereafter each alternate weekend in Melbourne during school term time from 6:00pm Saturday to before school Monday;
(c)In (omitted) from 9:00am Saturday to 5:00pm Sunday, unless other times are agreed, during school term time commencing 10 March 2012 and thereafter each alternate weekend in (omitted) during school term time from 9:00am Saturday to 5:00pm Sunday;
(d)For twelve (12) days during each Victorian term school holiday commencing at 9:00am on the first Sunday of that school holiday period and concluding 5:00pm twelve (12) days later unless times are otherwise agreed by the parties; and
(e)At such other times as agreed between the parties.
For periods of time that the child spends with the father during school term time in (omitted) the mother or her nominee shall deliver the child to the father or his nominee at (omitted) Police Station and shall collect the child from the father or his nominee at the conclusion of the time at the same place.
The periods of time in school term time the father spends with the child in Melbourne, the mother or her nominee shall deliver the child to the father or his nominee in at (omitted) Police Station at the beginning of the period of time and the father or his nominee shall return the child to (omitted) Primary School.
For school holiday periods the mother or her nominee shall deliver the child to the father or his nominee at the beginning of the period at (omitted) Police Station and the father or his nominee shall return the child to the mother or her nominee at the end of the period to (omitted) Police Station.
Each party shall through their solicitors advise the other party by not later than 2 March 2012 their mobile telephone number and residential address.
The parties shall notify each other by text message of any nominated person to affect changeover not later than 24 hours prior to that changeover.
Each party shall keep the other advised of any serious injury occasioned to the child and/or medical treatment received by the child whilst she is in that party’s care.
Neither party shall denigrate the other party or a member of that party’s family or household in the presence or hearing of the child nor permit the child to remain in the presence or hearing of any person who engages in such denigrative behaviour.
The father shall have telephone communication with the child each Wednesday when the child is not spending time with him sometime between 6.30pm and 7:00pm by telephoning the mothers mobile telephone. The mother shall ensure her mobile telephone is turned on, charged and in a place of reception and will assist the child in receiving that telephone communication.
The mother shall have telephone communication with the child each Wednesday when the child is not living with her sometime between 6.30pm and 7:00pm by telephoning the fathers mobile telephone. The father shall ensure his mobile telephone is turned on, charged and in a place of reception and will assist the child in receiving that telephone communication.
The father shall ensure he is home each evening when the child is spending time with him during the school holiday periods.
Pursuant to Section 68L of the Family Law Act an Independent Children’s Lawyer is appointed for X, born (omitted) 2007 and I request the Legal Aid Commission of NSW to provide such representation
The parties are to provide to the Legal Aid NSW (Parramatta Office) forthwith all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report.
The Family Report to deal with the following matters:
(a)Any views expressed by the child the subject of parenting orders sought in this case, provided that the child shall not be required to express a view in relation to any matter.
(b)The nature of the relationships of the child with each of the child’s parents and with significant other persons.
(c)The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.
(d)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of the parents: or
(ii)any other child, or significant person, with whom the child has/have been living.
(e)The practical difficulty and expense of the child spending time with 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.
(f)The capacity of each parent, or another person, to provide for the needs of the child, including emotional and intellectual needs.
(g)Each parent’s attitude to the child and to the responsibilities of parenthood.
(h)Any family violence involving the child or a member of the child’s family.
(i)Such other issues as the Family Consultant considers relevant.
The Family Consultant is requested to complete the report not less than 4 weeks before the directions hearing date, being 3 September 2012 at Parramatta.
The parties, their partners and other significant adults and children shall attend all appointments with the Family Consultant and shall ensure the subject child attend all appointments with the Family Consultant, as requested by the Family Consultant.
The family consultant may inspect the court file and any documents produced on subpoena to which no objection has been lodged.
This case is listed for Final Hearing for three (3) days at 10:00am on 3, 4 and 5 September 2012 at 1-3 George Street Parramatta.
The Applicant is to file any amended Application by 29 June 2012.
The Respondent is to file any amended Response by 29 June 2012.
Both parties are to file and serve all Affidavits upon which they rely by 3 August 2012.
Each party is to file and serve to the other party not later than 4pm on 29 August 2012 a case outline setting out the precise minute of orders sought, a relevant chronology and a statement of evidence supporting the principles contained in Section 60CC(2), (3) & (4) of the Family Law Act 1975, together with an agreed list of affidavits to be read.
The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Magistrates Regulations 2000.
No party shall be entitled to rely on any affidavit material not filed and served in accordance with these directions without leave of the Court first had an obtained.
In the event that either party wishes to cross examine the Family Report writer at the final hearing, that party shall provide written notice to the Family Report writer of such intention no later than 7 days prior to the hearing.
In the event that no such notice is given to the Family Report writer or the Family Report writer us unavailable, the Family Report will be admitted into evidence without cross examination, subject to any objection.
IT IS NOTED that publication of this judgment under the pseudonym Martino & Tankard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DUBBO |
PAC 2955 of 2009
| MR MARTINO |
Applicant
And
| MS TANKARD |
Respondent
REASONS FOR JUDGMENT
Orders Sought
By initiating application filed 23 November 2011, Mr Martino seeks final parenting orders and a recovery order.
An application in a case filed by Mr Martino on 23 November 2011 seeks a location and a recovery order. I note that the location order has already been made. He relies on an affidavit he swore on 2 November 2011 and on an affidavit he swore today, 23 February 2012.
By response filed 22 February 2012, Ms Tankard seeks final and interim parenting orders and the appointment of an independent children’s lawyer.
By a response to an application in a case filed 22 February 2012, Ms Tankard seeks injunctions pursuant to section 68B to prevent the father learning of her residential address or being near it, being at or near her workplace, or from removing the child, X, from (omitted) Primary School, (omitted), Victoria. Ms Tankard relies on her affidavit sworn 21 February 2012 and a notice of child abuse filed 22 February 2012.
The parenting proceedings relate to the parties’ child, X, born (omitted) 2007. X has just turned 5. X is the only child of the parties’ relationship.
The Parties Relationship
Mr Martino says that the parties did not live together. He says that their relationship started in 2004, and he describes it as an on/off relationship that was over by 2008. Ms Tankard says that their relationship began in 2004, but did not end until 2009, and that they had two short periods of cohabitation.
History of Proceedings
On 19 June 2009, the local court at Parkes made interim orders, seemingly on an ex parte basis, for X to live with the father, for the parties to have equal shared parental responsibility, for the mother to spend time with X each weekend from 5 pm Friday to 5 pm Sunday, and for the mother to have telephone communication with X each Wednesday between 6.30 pm and 7.30 pm, and that the mother deliver X to the father to give effect to the live with order on 21 June 2009, and failing that, a recovery order was to issue. The local court then transferred the proceedings to the Federal Magistrates Court at Dubbo.
On 20 July 2009, the parties by consent, with the help of their legal representatives, entered into final orders that were then made by the Federal Magistrate. Those orders provided for the parties to have equal shared parental responsibility for X, to live week-about with each parent with changeovers at 5.30 pm on Sundays. Other ancillary orders were made, including telephone communication orders.
In evidence at the time of making the orders in the local court and in the Federal Magistrates Court, and non contentious, was the fact that the father lived at (omitted), and the mother lived in (omitted).
The orders were, on the father’s evidence, largely complied with until mid-July 2010, when he says the mother kept X for three weeks until 1 August 2010.
Seemingly in retaliation, the father then retained X on having her returned to him. X lived with him until 17 August 2010, when the police executed a recovery order at the instance of the mother and returned X to her.
Thereafter, he says that the parties complied with the orders until 31 October 2010. He says that he has not spent time with X since 31 October 2010.
He says that in February of 2011, he had some text communication by mobile telephone with the mother. He consequently came to believe her to have married, and to be living in Melbourne. It is not clear when he first became aware that she moved to Melbourne, although more of that is revealed in the mother’s evidence.
The father thereafter commenced these proceedings nine moths later on 23 November 2011.
The father was and is an (occupation omitted). He remains living at (omitted). He was born on (omitted) 1961.
He proposes that X live with him, that X spend time with the mother, if the mother is not living in (omitted), for half of the school holidays and one weekend per school term.
If the mother is living in (omitted), he proposes that the mother spend time with X each alternate weekend from 5 pm Friday to 5 pm Sunday, and that there be telephone communication.
His affidavit contains little explanation as to the delay in filing, except that he had trouble with his initial solicitors and sought to change solicitors some time in February of 2011.
He lives in a four-bedroom home.
He is married to Ms D. He does not disclose the date of their marriage. His 22-year-old daughter Y and his two grandchildren, A, aged 5, and B, aged 2, live with him and his wife.
He says that his (occupation omitted) keeps him away from home three to four nights a week, but he says he would go on extended leave or cease his employment if the Court ordered that X is to return to live with him.
He proposes to enrol X at either (omitted) Primary School or a larger primary school nearby.
He provides no explanation nor evidence as to how he would meet his living expenses if he ceased work or took extended leave. I can only assume, therefore, that he would have sufficient resources to be able to provide for himself and his family and X, if she is ordered to live with him.
He asserts all except B know and love X, but this is an entirely self-serving statement without any evidentiary basis, although it is not disputed in any way by the mother.
Ms Tankard says in her evidence that she was born on (omitted) 1989.
She is also a (occupation omitted).
Ms Tankard agrees as to the details of her relationship with Mr Martino, but says for three months she lived with him and his wife Ms D sometime in 2006 when she was pregnant with X, and then later for three months with Mr Martino alone between March and June of 2009.
She asserts that Mr Martino had little involvement with X for the early part of X’s life. She says when X was three months old, Mr Martino denied paternity. Parentage testing subsequently, she says, proved him to be X’s father, and he thereafter recommenced to spend time with X, mainly during the time that she worked at (omitted), being two 8-hour shifts.
In October of 2007, she says that she and X moved from (omitted) to live in (omitted), Queensland. She said that Mr Martino would visit when his (occupation omitted) took him through (omitted).
In February of 2008, she says that she and X returned to live in (omitted), and she commenced employment with (omitted). X then began attending day care four days a week and pre-school one day a week.
She says between February of 2008 and February of 2009, Mr Martino would spend time with X about once a fortnight by agreement.
From March to June of 2009, she says that she and Mr Martino lived together and he regularly cared for X.
Mr Martino does not reply on legal advice to any of the above by reason of the fact that the parties consented to orders in July of 2009, and it is not relevant, he says, to transverse all of the history that Ms Tankard has given. There is much merit to that submission on his behalf.
Ms Tankard alleges two incidents of family violence on 5 and 6 June 2009. Mr Martino does not reply, again, to that allegation, as it predates the orders of June and July of 2009.
Ms Martino says that she was in Melbourne with X from 16 to 20 June 2009, and only learnt of the orders made in the Parkes Local Court on 19 June 2009 on her return, they being, by inference, it would seem, ex parte orders.
She complied with the orders by delivering X to Mr Martino’s care on 27 June 2009. She says she tried to comply earlier, but Mr Martino, through work commitments, was unable to collect X.
Again, Mr Martino does not transverse that evidence for the reasons previously stated.
She disputes Mr Martino’s assertion that there was nearly complete compliance with the orders made on 20 July 2009, but she does not deny that X spent weekly and longer block periods living with Mr Martino.
She says that on 3 July 2010, she relocated with X to Melbourne and commenced to live with a Mr B. She does not deny that it was a unilateral decision on her behalf. She does, however, assert she advised Mr Martino of her decision to relocate to Melbourne, and thereafter provided him with an address at where she was living. Clearly, Mr Martino had that address, because later proceedings bore that address as her residence for living purposes.
She then gives evidence that, on an occasion in early July before the orders were made on 20 July, there was an incident at a truck stop at (omitted). That incident is put into dispute by Mr Martino, because of that, as a consequence of the principles in Goode & Goode, I can make no findings in respect of that incident. But Ms Tankard says that when X was given the opportunity of choosing who she would go with at the end of what occurred, elected to go with her father. The parties concede through their counsel that X often spent time travelling with each of them (omitted) on long interstate trips.
Ms Tankard says Mr Martino last spent time with X not on 31 October 2010, but rather on 5 February 2011. She says that after 31 October 2010, the father spent time with X in the period 26 December 2010 to 2 January 2011, and from 30 January 2011 to 5 February 2011. That fact is not conceded by Mr Martino, and again, the reasons as set out in Goode & Goode, I can make no finding. It remains a fact in contention at this interim hearing.
She further says that she drove with X to (omitted) on 13 February 2011 to facilitate more time, but Mr Martino did not attend at the police station for changeover.
Clearly, she was at the police station as she says, but whether Mr Martino knew that she was there, I’m not able to ascertain at this point in the proceedings.
Ms Tankard agrees X has a good relationship with Mr Martino, Mr Martino’s other children, and his grandchildren.
Ms Tankard lives with X in Victoria in a two-bedroomed unit at an undisclosed address. She says that X are the only occupants at their address.
Determination
She bases her section 68B injunctions on a history of verbal abuse from Mr Martino and his extended family at changeover, which abuse is denied by Mr Martino. She also relies on an incident that gave rise to an apprehended violence order.
Regarding that incident, no finding can be made, as it remains a fact in contention. It is clear that an apprehended violence order was issued but has now expired.
She says in August 2010 that through her solicitor she sought mediation in an attempt to resolve difficulties with the orders that had arisen as a result of her relocation to Melbourne. It is not clear at this point in time whether or not Mr Martino refused to participate. The section 60I certificate says that both parties did not attend but the explanation for that and the reasons for that at this point are not entirely clear. The need for such certificate is dispensed with as an interim decision is necessary to give certainty about X’s living arrangements.
X currently attends (omitted) Primary School in (omitted), a suburb of Melbourne. X attends before and after school care. X commenced at (omitted) Primary School in early February 2012 at the commencement of the school year. There is a letter from that school annexed to Ms Tankard’s affidavit which is dated 15 February that confirms that X is enrolled at that school and has up until 15 February missed no days at school.
Ms Tankard was married to Mr B on 12 February 2011 but they separated on 19 September 2011 and seemingly have nothing further to do with each other.
Until 21 December 2011 Ms Martino was regularly (omitted) and X by inference was accompanying her.
Ms Martino has a grandmother who lives in (omitted). (omitted) is an eight hour drive from Melbourne.
In deciding this case it is important to realise that X has just turned five. Since either late October 2010 some 15 months ago or February 2011 some 11 months ago, X has spent no time with her father.
It is impossible at this interim hearing to determine who is responsible for this. Likely it is the responsibility of both parents although no finding can be made. The uncertainty about much of the evidence in this case simply highlights that which her Honour Justice Boland said in Morgan & Miles about the difficulty in conducting relocation hearings as interim proceedings.
X has, as I’ve said, commenced kindergarten in February of this year. Prior to that her lifestyle was at best itinerant. She spent time travelling (omitted) with both of her parents interspersed by periods in their homes. She is well used to travelling long distances and for long times in vehicles.
Despite her age she, if any child, will manage an eight hour drive from Melbourne to (omitted). If the mother is ordered to return X to live in (omitted) it will be a change for X. X has just begun to experience at her school the only settled period of her life. To change that runs the risk of upsetting her.
If change is not made then it will limit the opportunity X has to have an equal time arrangement with her father. X experienced such an arrangement for about 15 months on the father’s evidence from July 2009 to October 2010.
Otherwise, except for that period, X has lived predominantly with her mother and spent time with her father.
There is no evidence as to X’s views. It is conceded by the mother that X had a good relationship with the father and his family (on her evidence until February 2011).
It is likely but uncertain at this stage of the proceedings that both parties have been less than willing to facilitate and encourage a close and continuing relationship between X and the other parent. Both have kept X for longer periods than the July orders have provided and both have sought and obtained recovery orders relevant to X.
There is significant practical difficulty and expense for X spending time with the father if X remains in Melbourne and little practical difficulty and expense if she returns to live in (omitted) if the mother can secure accommodation and employment.
The ability of the mother to be able to secure accommodation and employment is uncertain in (omitted). She has accommodation and employment in Melbourne. The maternal great-grandmother lives in (omitted). The availability of housing and what income the mother could earn if she returned to (omitted) is at this point in time unknown.
If she were unable to secure either accommodation or income that would affect her capacity to be able to provide for and meet the needs of X.
Neither party criticises the other parent’s capacity as a parent otherwise they would not have consented to the July 2009 orders.
Both have had X travel with them in their (omitted) on long trips.
Due to the limited and conflicted evidence, it is not possible to determine at this stage of the proceedings the attitude of either parent to the responsibilities of parenthood.
No findings can be made at this stage as to the family violence.
In any event both parties seek an order for equal shared parental responsibility. An equal time order as sought by the father would only be possible if X lives in (omitted) with her mother.
I am not certain that order would be reasonably practicable given uncertainty about employment and accommodation for the mother and X in (omitted).
A significant and substantial time order is not possible if X lives in Melbourne because mid week time could not occur other than in school holidays.
An order, for significant and substantial time would be possible if X lived in (omitted). Although again I am uncertain that that order, if made, would be reasonably practicable given uncertainly about the mother’s ability to obtain employment and accommodation for her and X in (omitted).
Neither party for a long time did anything after the mother unilaterally relocated to Melbourne, even though it was apparent compliance with the July 2009 orders was becoming increasingly difficult.
Not making a change in X’s current settled living circumstances of living in Melbourne with her mother and attending school is very important given her itinerant lifestyle with both parents until December 2011.
Not making a change assumes the most importance and significance in this case.
X’s recent period of being settled in Melbourne and commencing to attending at school is the only significant period of permanence that she has experienced.
A reintroduction of X to her father and his family will be necessary given the long break that has occurred in them spending time with each other. It also recognises young children often do not maintain relationships if there are long breaks in spending time together.
An, each weekend arrangement, one in (omitted) and one in Melbourne leading up to a twelve day holiday in each school holiday period in (omitted) with the father provided he is not working at the time would re-establish X’s relationship with her father so as to make it meaningful.
Such orders would limit X’s 16 hour round trip travel to an alternate weekend arrangement, and would thus be reasonably practicable if the father had some place to stay in Melbourne.
As this has not been considered by the parties, procedural fairness means that he must be allowed further time to make submissions regarding the time with orders foreshadowed.
Otherwise a three weekend rotation in school term time with X travelling to (omitted) or some mid point and 12 days in holiday times is both reasonably practicable and in X’s best interest when all of the above is balanced with her remaining living with her mother at other times in Melbourne.
There is insufficient evidence to cause the making of the section 68B injunctions the mother seeks. The father has never been to the mother’s home or work place. He knew for a long period of time of her residence in Melbourne but never attended there.
The allegations of family violence are not conceded. No findings of family violence are made due to the conflicted evidence. Further exploration during a final hearing may change this.
Part of an equal shared parental responsibility order which both parties seek means that the father needs to be able to attend at X’s school both to exercise that responsibility by talking with teachers and so as to add extra meaning to the father/daughter relationship.
To exercise equal shared parental responsibilities the parties will need to exchange mobile telephone numbers and addresses within seven days. Exchange of mobile telephone numbers will also be necessary so as to enable the telephone communication order that is to be made that will add further meaning to the relationship between X and her father. These are other reasons for not making the s68B injunctions.
The father should caution family and friends against harassment of the mother. Incidents of such harassment might reflect poorly on him depending upon the circumstances at a final hearing.
As I’ve said regular telephone communication each Wednesday will add meaning to the father/daughter relationship and an order will be made to order that to occur.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Dunkley FM
Date: 19 July 2012
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