MASON & MASON
[2013] FMCAfam 99
•8 February 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MASON & MASON | [2013] FMCAfam 99 |
| FAMILY LAW – Children – parenting orders – final orders – best interests of the child – parental responsibility – equal shared parental responsibility. FAMILY LAW – Children – passport – child’s passport – delivery of passport – whether order should be made for delivery of child’s passport to be delivered up to the Court. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 63B, 65DAA, 65Y, 67ZD Federal Magistrates Court Rules 2001 r.17.02 |
| John & Dane [2007] FMCAfam 93 Klein & Wright [2007] FMCAfam 360 |
| Applicant: | MS MASON |
| Respondent: | MR MASON |
| File Number: | SYC 373 of 2011 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 5 and 6 February 2013 |
| Date of Last Submission: | 6 February 2013 |
| Delivered at: | Sydney |
| Delivered on: | 8 February 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Christoff |
| Solicitors for the Applicant: | M.J. Woods & Co |
| Respondent: | The Respondent appeared in person |
ORDERS
All earlier parenting Orders are discharged.
The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the child of the marriage [X] born [in] 2000.
The child [X] is to live with the Mother.
The child [X] is to spend time with the Father:
(a)From 9:00am to 4:00pm each alternate Sunday PROVIDED THAT if the Mother becomes aware that the child will be unable to spend time with the Father on the Sunday of that weekend then the Mother is to arrange for the child to spend time with the Father from 9:00am to 4:00pm on the Saturday instead;
(b)From 9:00am to 2:00pm each Christmas Day;
(c)From 3:00pm to 8:00pm on the child’s birthday or at such other time on that day as the Mother and Father shall agree;
(d)From 3:00pm to 8:00pm on the Father’s birthday being [date omitted] in each year;
(e)From 9:00am to 4:00pm on Father’s Day in each year: and
(f)On such other days as the parties shall agree, including the birthday of the child’s paternal grandfather MR M.
For the purposes of Order (4) above the Father is to collect [X] from the shop premises known as [omitted] in [address omitted] or such other place as the parties agree at the commencement of the child’s time with the Father and return the child to the Mother at the same place or such other place as the parties shall agree at the conclusion of the child’s time with the Father.
Each parent is to enjoy liberal and flexible telephone communication with [X] during periods when the child is in the care of the other parent and each party is to provide to the other party details of their respective telephone contact numbers and emergency contact numbers for this purpose.
The Father is restrained by injunction from consuming any alcoholic drink or administering to himself any prohibited drug at any time when the child [X] is in his care according to these orders or for a period of twelve (12) hours beforehand.
In the event that [X] becomes ill or injured and requires medical attention the party who has the care of the child on such occasion must notify the other party and provide the other party with details of the child’s treating doctor or hospital as soon as practicable.
The parties are restrained from criticising or denigrating the other party in the presence or hearing of the child [X].
INTERSTATE TRAVEL
In the event that either party wishes to travel out of the State of New South Wales with [X] the party wishing to travel with the child must:
(a)Notify the other party in writing not less than three (3) weeks prior to the proposed departure date; and
(b)Forward to the other party not less than fourteen (14) days prior to the proposed departure date a copy of the proposed itinerary and return date and contact telephone numbers and addresses at which the child may be contacted for the duration of the time that the child remains out of the State of New South Wales.
The party wishing to travel out of the State of New South Wales with the child [X] must ensure that the dates of proposed travel do not fall either wholly or partly within school term time unless the other party consents in writing.
OVERSEAS TRAVEL
In the event that either party wishes to travel out of Australia with [X] the party wishing to travel with the child must:
(a)Notify the other party in writing not less than eight (8) weeks prior to the proposed departure date; and
(b)Forward to the other party not less than four (4) weeks prior to the proposed departure date a copy of the proposed itinerary including flight numbers and times and the proposed return date together with contact telephone numbers and addresses at which the child may be contacted for the duration of the time that the child remains out of Australia.
The party wishing to travel out of Australia with the child [X] must ensure that the dates of proposed travel do not fall either wholly or partly within school term time unless the other party consents in writing.
In the event that either party wishes to travel out of Australia with the child [X] and that party has complied with Order (13) above then the other party must do all things and sign all documents and consents as may be necessary to enable the child to travel out of Australia with that party.
The parties must keep each other informed of their current landline and mobile telephone numbers and notify each other of any change to their telephone numbers within twenty-four (24) hours of such change.
IT IS NOTED that publication of this judgment under the pseudonym Mason & Mason is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 373 of 2011
| MS MASON |
Applicant
And
| MR MASON |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application for parenting Orders in respect of the parties’ son [X], who was born [in] 2000. [X] currently lives with his mother and spends time with his father as provided by interim parenting orders that were made by consent on 7th December 2011.
The parties have been engaged in litigation in respect of parenting and property matters for over two years since the Mother commenced proceedings on 24th January 2011. The child [X], who is now twelve years old, is aware of the legal proceedings between his parents and is reported by the Regulation 7 Family Consultant who prepared the Family Report as saying that he had been “brought up in Court”.[1]
[1] Family Report page 12 paragraph [38]
The parties’ proposals for parenting orders for their son are quite similar and follow along the lines of interim parenting orders to which the parties consented on 7th December 2011. Unfortunately, the parties have not been able to agree on final parenting orders, as they have been unable to resolve two issues:
a)Whether [X] should spend one day a week with his father or whether he should spend one day a fortnight with him; and
b)Whether the Mother should deliver up the child’s passport to the Court so that there should be some proceedings or, at least, enforced negotiation, between the parties whenever the Mother wishes to take the child out of the country.
Because the issues are so narrow, and mindful of [X]’s awareness that his parents have been engaged in litigation about him for over two years, a decision has been made to deliver a separate decision on the question of parenting orders, as provided by Rule 17.02. It is in the best interests of the child for a decision to be made about final parenting orders at an early date, without waiting to make a decision on the property issues between the parties.
Background
The Father’s former solicitor, Mr King, prepared a helpful chronology in a Case Information document which was filed on 31st January 2013, shortly before Mr King withdrew from the proceedings. I have relied upon some information in that chronology to set out relevant background details.
The Father was born in Australia [in] 1959. The Mother was born in Fiji [in] 1963.
The parties were married [in] 1990. They separated in May or June 2010.
There are two children of the marriage.
[Y] was born [in] 1993. She is now an adult and the Court has no jurisdiction to make any parenting order.
The parties’ son, [X], the subject of this Application, was born [in] 2000. He is 12 years and 8 months old. [X] lives with his mother and spends time with his father.
Procedural History
The Mother commenced proceedings on 24th January 2011 by filing an Application for parenting and property orders. The Application was returnable on 18th April 2011 but was re-listed to 18th May 2011.
There was no appearance by either party on 18th May 2011.
The Application was adjourned to 21st June 2011, on which date the parties were directed to attend a Child Dispute Conference with a Family Consultant.
The Child Dispute Conference was scheduled to take place on 14th July. The Father attended, the Mother did not.
On 7th December 2011 the parties entered into consent orders covering interim parenting arrangements. Those orders continued, more or less successfully, until the final hearing.
A Family Report was ordered and the Application was listed for final hearing on 5th February 2013, to continue to 7th February.
The parties attended interviews with the Regulation 7 Family Consultant on 13th December 2012 for the purpose of preparing the Family Report.
Oddly, the parties deposed in their trial affidavits that they had attended a further Child Dispute Conference on 17th December.[2] They did not. There was no such conference ordered. They had attended the interviews for the purpose of the Family Report the previous Wednesday but there was no Child Dispute Conference scheduled for Monday 17th December.
[2] Affidavit of Mr Mason 24.1.2013 at paragraph [20]; affidavit of Ms Mason 30.1.2013 at [20]
Evidence
For the purpose of the parenting proceedings, the Mother relied on her affidavit of 30th January 2013.
The Father relied on:
a)his affidavit of 24th January 2013; and
b)a Case Information document prepared by his solicitor.
The parties also relied on the Family Report.
Both parties gave oral evidence.
It was the Mother’s evidence that the Father had started using the drug cannabis on a daily basis from the beginning of the marriage. She claimed that his behaviour towards her became verbally and physically aggressive.[3] This behaviour included picking up the parties’ daughter [Y], then aged two, and throwing her down onto a bed.[4]
[3] Affidavit of Ms Mason 30.1.2013 at [11]
[4] Ibid at [13]
The parties separated but reconciled three months later. They separated again after an incident in May 1995 when the Mother claims the Father hit her and pushed her.[5]
[5] Ibid at [16]
They remained apart until 1998, when cohabitation resumed.
The Mother deposed that the Father continued to smoke cannabis “at least five times a day” and would consume “at least six to ten bottles of beer per day”.[6]
[6] Ibid at [22]
The Mother complained that the Father was violent towards her on various occasions, requiring the intervention of the Police. She annexed to her affidavit copies of the following:
a)her statement to [omitted] Police made on 11th November 1998;
b)an Interim Apprehended Violence Order made on 19th November 1998;
c)a Final Apprehended Violence Order made on 24th March 1999;
d)a subpoena to the mother requiring her to attend the District Court on 19th July 2000 to give evidence for the prosecution in respect of an allegation of common assault by the Father;
e)a letter from the Domestic Violence Office of [omitted] Police Station advising the Mother that an Apprehended Violence Summons against the Father was returnable at [omitted] Local Court on 27th July 2006; and
f)an Undertaking signed by the Father on 27th April 2009 in respect of an Apprehended Violence Summons.
The Mother deposed that she moved to her current address with the children in or around 2010 because she could no longer tolerate the Father’s behaviour. She feared that their daughter [Y], then aged 17, would leave home if they did not move away from the Father.[7]
[7] Ibid at [60]
The Mother does not speak directly to the Father and she does not wish him to know her address.
The Mother deposed that her mother still lives in Fiji and she travelled to Fiji with the children to see her between 30th December 2012 and 28th January 2013. She gave the Father written notice of the planned holiday, both by way of a written note and a letter from her solicitor to the Father’s solicitor.
The Father’s evidence is that he received no prior notice of the Mother’s proposal to take [X] to Fiji until he received a letter handed to him by [X] on Christmas Day. He deposed that the Mother had previously failed to consult him in advance or communicate with him prior to taking the children overseas. He stated:
On 30 January 2011 [X] handed to me a letter dated 3 January 2011, a copy of which is annexed hereto and marked with the letter “B”. On this occasion, as on the occasion of Christmas Day 2012 I had received no prior communication from [Ms Mason] about the proposal contained in the letter.[8]
[8] Affidavit of Mr Mason 24.1.2013 at [6]
The Father expresses concern about this issue, which is why he seeks an order about the mother surrendering the child’s passport to the Court. He sets out his reasons at paragraph [10]:
I am concerned that [Ms Mason] does not consult me or communicate with me prior to making arrangements to take the children overseas. I do not object to [X] travelling overseas with [Ms Mason] provided I am notified a reasonable time in advance and I am provided with details as to the length of the trip, telephone contact details for [X] and further that I am given assurances that I am informed if any problems arise while [X] is overseas.[9]
[9] Affidavit of Mr Mason 24.1.2013 at [10]
The Father also deposes that he wishes to increase the amount of time he spends with his son. He complains that his requests to the Mother for additional time have been ignored.[10]
[10] Ibid at [11]
The Family Report
The Family Report was completed on 17th January 2013 and released on 24th January. For the purpose of preparing the Report, the Family Consultant interviewed both parents and assessed [X] and his sister [Y]. The Family Consultant observed [X] with his father and sister and later observed him with his mother and sister. She records that she later had a telephone conversation with the Father.
The Family Consultant identified the issues in dispute as:
· Whether there should b e formal arrangements in place for [X] to spend time with his father, as proposed by Mr Mason, or whether the arrangements should be more flexible, as proposed by Ms Mason.
· Whether Ms Mason should be able to travel to Fiji, with reasonable amount of notice, as proposed by Ms Mason, or whether [X]’s passport should be held by the Court Registry, as proposed by Mr Mason.[11]
[11] Family Report pages 5-6, paragraph [13]
The Mother told the Family Consultant that she perceived [X] as being close to his father and keen to maintain a relationship with him. She would like [X] to continue spending time with his father and would be happy if the time extended to alternate weekends. , she expressed concern about the Father’s drinking and saw this as a barrier to [X] staying over night with his father.
The Mother denied to the Family consultant that she had any plans to move back to Fiji, saying that she had built her life in Australia for the past 20 years. She felt that there are better opportunities for the children in Australia.
The Father presented as being aggrieved about the separation from his wife and children and frustrated about the current arrangements. He conceded his cannabis use and his history of heavy drinking. He expressed a wish to expand the time that [X] spends with him but did not come up with a detailed proposal:
He said he would like to eventually expand the time but was unsure whether he would be able to do so in the immediate future because of his work and other commitments. He said he spends Saturdays attending to his financial and other affairs and that a weekly arrangement would make it difficult to complete these tasks. He also said that he has limited finances for entertaining a young person.[12]
[12] Family Report page 10 at [30]
The Family Consultant recommended that the fortunately arrangement should continue. She also recommended that the Father seek professional support regarding his alcohol use.
Importantly, the Family Consultant recommended that “the parents develop a formal agreement regarding the parameters for taking [X] on overseas trips.”[13]
[13] Ibid page 18
The Family Consultant was not required for cross-examination.
The Law to be applied in Parenting Applications
When the Court is deciding whether to make a parenting order, it is required by section 60CA of the Family Law Act to regard the best interests of the child as the paramount consideration. The Court determines what is in a child’s best interests by considering the matters set out in subsections (2) and (3) of s.60CC of the Act.
Section 61DA requires the Court, when making a parenting order, to apply a presumption that is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in cases of abuse or family violence (see s.61DA(2)) and may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for the presumption to be applied.
If the Court does make a parenting order providing for a child’s parents to have equal shared parental responsibility, the Court is required by subsection 65DAA(1) to consider whether the child spending equal time with each parent is both in the best interests of the child and reasonably practicable.
If the Court does not make an equal time order, the Court is required by subsection 65DAA(2) to consider whether it would be in the child’s best interests and reasonably practicable to spend substantial time with each parent.
All of those matters have been considered in making this decision.
Conclusions
The best interests of the child remain the paramount consideration. It is for this reason that a decision was made to hand down final parenting Orders without delay. The property matters will be the subject of a separate decision in the near future.
It is regrettable that the parties were unable to agree on the final form of parenting orders, especially as both parties were more or less in agreement about the Family Consultant’s recommendations. The parties have no direct communication at all and each one seems to distrust the other.
Both parties seek an order that they should have equal shared parental responsibility for [X]. In the light of that common position, I will order accordingly.
I cannot see that this is a case where it would be either in [X]’s best interests or reasonably practicable for him to spend equal time with each of his parents. The parents have no direct communication and the Mother does not want the Father to know her current address. The Father’s work commitments would not permit him to have [X] in his care for half of the fortnight. Neither party seeks such an order.
When considering the question of substantial and significant time, the Court must look at the child’s best interests and whether it would be reasonably practicable. The Mother does not seek an order of this nature and the amount of time that the Father seeks falls considerably short of the definition of substantial and significant time in s.65DAA(3).
It is hard to see that it would be reasonably practicable, noting that the Father is reported as having said to the Family Consultant that [X] has not stayed overnight with him since the separation and he is “terrified of this occurring in case accusations are made about his behaviour”.[14]
[14] Family Report page 12 at [36]
The primary considerations for the Court in determining what is in a child’s best interests are set out in subsections 60CC(2), paragraphs (a) and (b).
There is, in my view, a benefit to the child in having a meaningful relationship with both of his parents. He lives with his mother and wants to stay living with her. However, he has spoken positively to the Family Consultant about his time with his father and he enjoys their activities together. [X] is aware of his father’s drinking in the past but commented that his father does not drink alcohol whilst he is with him. He also said that his father had not become angry since the fortnightly arrangement commenced.
The Court must consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s.60CC(2)(b)). Clearly, the Father’s history of family violence, which seems to have been precipitated by his alcohol consumption in the past, must be taken into consideration. It is encouraging to see that the Father has taken steps to address his alcohol consumption whilst [X] has been spending time with him. The Father should not consume alcohol or administer any prohibited drug to himself at any time when [X] is in his care or for a significant period beforehand.
There are additional considerations for the Court set out in s.60CC(3). In s.60CC(3)(a), the Court is required to consider any views expressed by the child and take into factors that are relevant to the weight that should be given to those views. The Family Consultant regarded [X] as “a polite, friendly, well-spoken child who seemed to have a reasonable grasp of the issues presented by his parents. His manner of speaking and phrasing was sometimes more mature than one might expect of a 12 year old and he gave the impression of accommodating his parents’ views, to some extent, at least”[15].
[15] Family Report page 12 at [38]
[X] has expressed a preference to remain living with his mother and to continue to spend time with his father along the lines of the present arrangement. He would like to see more of his mother because she has very long working hours, having only recently stopped working seven days a week.
[X] did not believe that his father’s home was currently set up to allow him to stay overnight.
I am satisfied that [X]’s age and level of maturity allow the Court to give some weight to his views.
There is evidence that [X] has a positive relationship with both of his parents and his elder sister.
The Father seeks to participate in making decisions about long-term issues in relation to [X] and he wishes to spend more time with him than he currently does. It is a matter of concern that the Father has told the Court that quite often the amount of time he is able to spend with [X] is less than the time prescribed by the current interim orders. He claims that it is sometimes only five hours whilst a strict adherence to the times in Order 3.a. of 7th December 2011 would allow for the Father and son to be together from 9:00am to 4:00pm, a total of seven hours.
The Father is of the view that the discrepancy in the time is caused by the Mother. I see no reason to reduce the amount of time that [X] spends with his father.
The Court has to take account of family violence and whether a family violence applies, or has applied. There is evidence that there was family violence in the past, which led to the parties’ temporary and then permanent separation. There is no family violence currently in force but there was a final Apprehended Violence Order made in 1999 which was in force for two years.
It would be preferable to make orders that would be least likely to lead to the institution of further proceedings in relation to the child (see s.60CC(3)(l)).
I am not satisfied that a case has been made out for the child’s time with his father to be increased from fortnightly to weekly at this stage. The child himself does not seem to express such a wish. I propose to follow the recommendations of the Family Consultant.
One issue that needs to be considered is the Father’s request for an order that the Mother surrender the child’s passport to the Court with a view to a proper discussion of arrangements that should apply if the Mother wants to take [X] with her on a trip to Fiji.
The Court has the power to make such an order under s.67ZD, which provides:
If a court having jurisdiction under this Part considers that there is a possibility or threat that a child may be removed from Australia, it may order the passport of the child and of any other person concerned to be delivered up to the court upon such conditions as the court considers appropriate.
In John & Dane[16] Slack FM made an order specifically under s.67ZD after hearing evidence that the Mother still had relatives in the Philippines, her country of origin.
[16] [2007] FMCAfam 93
In Klein & Wright[17] his Honour also made an order s.67ZD after evidence that the Mother usually resided either in Italy or the United States and only visited Australia to spend time with the children.
[17] [2007] FMCAfam 360
No evidence of this strength has been brought in this case. At its highest, it is the Father’s case that at some time in the past the Mother had threatened to return to Fiji and take the children with her. The Mother has said that she has made her home in Australia for the past 20 years and has no intention of returning permanently to Fiji with [X], as [Y] is now an adult.
There is always a theoretical possibility that a party may seek to remove a child permanently from Australia, but in my view the section requires more than a theoretical possibility. There needs to be evidence of a real possibility giving rise to a suspicion on reasonable grounds that the other parent is a flight risk with the child. There is no such evidence in this case.
The Father seeks orders requiring eight weeks’ written notice in the event that either party wishes to travel interstate or overseas with [X].
In my view eight weeks notice is excessive in the event of a parent wanting to take the child to Melbourne for the weekend, for example. Interstate travel does not take the child out of the jurisdiction of the Court. It seems to me that three weeks’ notice would be more than sufficient.
The Father has a stronger case in asking for eight weeks’ notice of a proposed trip outside Australia. If there should be a dispute between the parties, eight weeks would be sufficient time to allow for an Application to be made to the Court if that should be necessary.
In this case, as in all parenting cases, the parties should heed the advice contained in s.63B of the Family Law Act, which says:
The parents of a child are encouraged:
(a) to agree about matters concerning the child: and
(b)to take responsibility for their parenting arrangements and for resolving parental conflict; and
(c)to use the legal system as a last resort rather than a first resort; and
(d)to minimise the possibility of present and future conflict by using or reaching an agreement; and
(e)in reaching their agreement, to regard the best interests of the child as the paramount consideration.
It is clearly in [X]’s best interests to visit Fiji from time to time, as his mother was originally from Fiji and his maternal grandmother still lives there. Provided he does not miss an unreasonable amount of school, [X] would usually benefit from spending time in Fiji.
It is not in any child’s best interests for the child’s parents to be continually engaged in litigation.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 7 February 2013
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