Mellier & Mellier
[2011] FMCAfam 178
•22 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MELLIER & MELLIER | [2011] FMCAfam 178 |
| FAMILY LAW – Children – Parenting Orders – Parental Responsibility – equal shared parental responsibility – whether the parties should have equal shared parental responsibility – family violence allegation – best interests of the children – substantial and significant time. |
| Family Law Act 1975, ss.60CA, 60CC, 61D, 61DA, 61DB, 65DAA, 65DAC, 65DAE |
| Mellier & Mellier [2010] FMCAfam 1286 |
| Applicant: | MS MELLIER |
| Respondent: | MR MELLIER |
| File Number: | SYC2196/2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 3 March 2011 |
| Date of Last Submission: | 3 March 2011 |
| Delivered at: | Sydney |
| Delivered on: | 22 March 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Fowler, Haydon Fowler Corbett Jessop |
| Solicitors for the Respondent: | Mr Autore, Autore & Associates |
ORDERS
The applicant mother is to have sole parental responsibility for making decisions about the issues of the education and residence of the children [X] born [in] 2005 and [Y] born [in] 2007.
Subject to Order (1) above, the parties are to have equal shared parental responsibility for making decisions about all other major long-term issues in relation to the said children [X] and [Y].
The mother is to have sole parental responsibility to make decisions about the day to day issues not being major long-term issues in relation to the said children at all times when they are in her care as provided by the orders made by this Court.
The father is to have sole parental responsibility to make decisions about the day to day issues not being major long-term issues in relation to the said children at all times when they are in his care as provided by the orders made by this Court.
IT IS NOTED that publication of this judgment under the pseudonym Mellier & Mellier is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC2196/2010
| MS MELLIER |
Applicant
And
| MR MELLIER |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the mother of two young children for an order that she should have sole parental responsibility for them. The father wants an order for equal shared parental responsibility.
Background
The children live with the mother. They are a girl called [X], who was born [in] 2005, and a boy called [Y], who was born [in] 2007.
The parties separated temporarily in December 2007 for about three weeks and permanently on 9th November 2008. The children have lived with the mother since that date.
The mother was born [in] 1975. She is an Australian citizen domiciled in Australia. The father was born in Tonga [in] 1974 and has lived in Australia since 1985. He is involved in the Tongan community in Australia and sets great store by the Tongan culture.
There were interim proceedings between the parties over the issues of:
a)With whom the children were to live and on what basis; and
b)What school or schools the children were to attend.
The issue of school attendance was of some urgency, as the application was set down for final hearing on 3rd and 4th March 2011 but the little girl [X] was due to start school at the commencement of Term 1 in 2011.
The father placed great importance on the children’s involvement in the Tongan culture, as he sought an interim order providing that the children be allowed to have regard to the father’s Tongan cultural beliefs and traditions and more particularly the father’s family and extended family and community values based in the Parish of [omitted] Church at [omitted], New South Wales.
One issue that the mother raised was that of family violence, which, on her affidavit evidence, precipitated the separation between the parties and led to the breakdown of the marriage.
On 23rd November 2010 I delivered a decision[1] and made interim orders providing that:
a)the mother should have the sole parental responsibility for the children;
b)the children were to live with the mother and spend time with the father;
c)[X] would attend [S] Primary School at [S] (the mother’s chosen school);
d)the parties were restrained from using abusive or derogatory language to each other in the presence or hearing of the children; and
e)the children were to travel in the rear seat of any motor vehicle and be properly restrained when travelling in that motor vehicle.
[1] Mellier & Mellier [2010] FMCAfam 1286
A Family Report was prepared for the purpose of the final hearing and was released to the parties on 28th February 2011.
The parties have now entered into consent orders, resolving most of the issues between them. Whilst the issue of parental responsibility remained unresolved, the parties were able to agree that:
a)the children should live with the mother;
b)the father would spend time with the children:
i)from 4.00 pm Friday until 4.00 pm the following Tuesday each alternate week, including during the school holidays;
ii)from 4.00 pm on Sunday until 4.00 pm on Tuesday in each intervening week other than school holidays, when the time would be extended to 8.00 pm on the Wednesday;
iii)at other times as agreed between the parties, including arrangements for Christmas Eve, Christmas Day and Boxing Day;
iv)on Father’s Day; and
v)not on Mother’s Day;
c)the restraint on using abusive or derogatory language would continue; and
d)the requirement for the children to sit in the rear seat of any motor vehicle and be properly restrained when travelling would continue.
Issue in Dispute
What remains in issue is the question of parental responsibility. The mother seeks an order that she should have sole parental responsibility for the children, on the bases that she is still intimidated by the father, due to the history of family violence, and that there have been significant disagreements between them since they separated on such issues as:
a)What schools the children should attend;
b)What time the children should spend with the father; and
c)Where the children are going to live.
The father claims that the parties have “moved on” from those issues and can communicate effectively. The father is concerned that if the mother has sole parental responsibility for the children, then they are in danger of losing their involvement with the Tongan community and of losing touch with their Tongan culture.
Submissions
The mother’s solicitor, Mr Fowler, submitted that there was sufficient evidence to show that there were reasonable grounds to find that the father had engaged in family violence and so the presumption that it is in the children’s best interests for the parents to have equal shared parental responsibility did not apply (Family Law Act 1975, s.61DA(2)). Notwithstanding the fact that the matter had been settled and the evidence had not been tested by cross-examination, the mother’s affidavit of 1st October 2010 and subpoenaed documents set out evidence that would allow the Court to be satisfied that there were reasonable grounds to believe that family violence had occurred.
Mr Fowler also submitted that there was evidence that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA(4)), as witness their post-separation disagreements about:
a)Where the children should go to school;
b)What time the children should spend with the father; and
c)Where they should go to school.
It was submitted that the mother was intimidated by the father and there was a likelihood there would be further disputes about arrangements in the future. As an example, he pointed to the fact that the little boy [Y] has a speech delay[2] and this raised the issue of whether he should start school in 2012 or whether his commencement of school should be put back to 2013.
[2] See Family Report paragraph [21]
Mr Fowler submitted that the Court should have regard to the consideration set out in s.60CC(3)(l) of the Act, requiring the Court to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children. Equal shared parental responsibility would lead to an ongoing problem between the parents.
Further, he submitted that the father’s fears that sole parental responsibility to the mother would be detrimental to the children’s right to engage their Tongan cultural heritage were not well founded, because there was evidence that the mother had embraced the Tongan culture and encouraged the children to participate in their Tongan cultural heritage. The mother even speaks fluent Tongan.
Mr Fowler pointed out that it was a recommendation in the Family Report that:
Consideration should be given to continuing the Order for parental responsibility in favour of the mother to lessen the risk of further conflict arising between the parents.[3]
[3] Family Report at [51]
Mr Autore, who appeared for the father, disagreed that the mother was intimidated by the father. She is a [omitted] by occupation, dealing with [omitted]. The evidence about family violence has not been tested and was denied by the father.
The parties have moved away from their earlier positions are capable of cooperating. The father has accepted the situation as it now stands and has moved from his previous address in [suburb omitted] in order to be nearer to the children where they live with their mother and attend school.
Mr Autore referred the Court to the provisions of s.65DAC, on shared parental responsibility, and s.65DAE, which provides that there is no need to consult on issues that are not major long-term issues.
The Relevant Law
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 (s.60CA). In order to determine what is in children’s best interests, the Court must consider the matters set out in subsections 60CC(2) and 60CC(3).
A parenting order confers parental responsibility for a child on a person, but only to the extent to which it confers on that person duties, powers, responsibilities or authority in relation to the child. It does not take away or diminish any aspect of parental responsibility except to the extent:
a)Expressly provided for in the order; or
b)Necessary to give effect to the order.
When making a parenting order, the Court must apply a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s.61DA(1)).
However, the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in:
a)Abuse of the child or another child who, at the time, was a member of the parent’s family; or
b)Family violence (s.61DA(2)).
The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility (s.61DA(4)).
When making final parenting orders, the Court must disregard any allocation of parental responsibility made in any interim order (s.61DB).
If a parenting order provides that a child’s parents are to have equal shared parental responsibility, the Court must consider whether the child spending equal time with each parent would be:
a)In the child’s best interests; and
b)Reasonably practicable (s.65DAA(1)).
If the Court makes an order providing for equal shared parental responsibility but does not make an order for the child to spend equal time with each parent, the Court must consider whether spending substantial and significant time with each of the child’s parents would be:
a)In the child’s best interests; and
b)Reasonably practicable; and
c)If it is, making an order for the child to spend substantial and significant time with each parent (s.65DAA(2)).
Substantial and significant time is defined by s.65DAA(3) to include:
a)Spending time with the parent not only on weekends and holidays but on other days as well;
b)Allowing the parent to be involved in the child’s daily routine and occasions of events of particular significance to the child; and
c)Allowing the child to be involved in occasions and events of special significance to the parent.
Section 65DAC of the Act provides that where two or more persons share parental responsibility for a child and the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child, the decision is to be made jointly and the parties must consult each other about that decision and make a genuine effort to come to a joint decision.
However, if a child is spending time with a person, there is no need to consult the other about issues that are not major long term issues (s.65DAE).
Conclusions
I have considered all of the matters in sections 60CA, 60CC, 61D, 61DA, 61DB, 65DAA, 65DAC and 65DAE. I will refer to specific sections and subsections where necessary.
In this case, the parties have already agreed that the two children should live with the mother and that the father should spend time with them. I am satisfied that this arrangement is in the children’s best interests, based on my reading of all the affidavit material, the Family Report and the submissions made both at the interim hearing in November and at the final hearing on 3rd March. The arrangements follow the recommendations set out in the Family Report. The Family Consultant was not required for cross-examination.
The living arrangements for the children agreed by the parties appear to be in the children’s best interests. They will allow the children to have a meaningful relationship with each of their parents but should not subject or expose them to abuse, neglect or family violence.
As these are consent orders, I am not required to consider all of the matters set out in s.60CC(2), although I have, or s.60CC(3).[4] However, submissions have been made covering the matters set out in paragraphs (j), (l) and (m) of s.60CC(3).
[4] See s.60CC(5)
Family violence is a matter for consideration under s.60CC(3)(j), and it has been alleged by the mother both in her affidavit material and in the Family Report but denied by the father. The allegations have not been tested by cross-examination as part of a contested hearing, as the parties have entered into consent orders, and I am not prepared to find that there are reasonable grounds to believe that the father has engaged in family violence. There is no family violence order.
Accordingly, I am not prepared to find under s.61DA(2) that the presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility does not apply. In any event, the parties are living separately and there have been no allegations of violence since separation.
Mr Autore, for the father, raises the concern that if there is an order for the mother to have sole parental responsibility for the children, then the father fears that they will be in some way restricted from being involved in the Tongan culture whilst living with their mother. Whilst the paragraph does not apply, Mr Autore draws a parallel with the considerations in s.60CC(3)(h) relating to the rights of Aboriginal and Torres Strait Islander children to enjoy their specific culture and the likely impact of any proposed parenting order on that right. It would appear to me that in this case this is a matter that the Court should consider under s.60CC(3)(m), as another fact or circumstance that the Court thinks is relevant.
The evidence seems to be clear that the mother has made serious efforts to encourage the children to be involved in that culture. The children have Tongan names. She speaks fluent Tongan and has many Tongan friends. She told the Family Consultant who prepared the Family Report that she maintains a close relationship with the father’s family. The Family Report states:
Despite being from an Australian background, Ms Mellier appears to have been immersed in the Tongan culture from a very young age and speaks the language. She appears to be very inclusive and accepting of the children’s Tongan heritage and values the importance of the children’s attendance on occasions of special significance to the Tongan community.[5]
[5] Family Report at [46]
It seems very unlikely that the mother will depart from her practice at this stage and the father’s fears appear to be groundless. In any event, when the children are spending time with the father he is perfectly at liberty to involve them in Tongan cultural activities without needing to consult the mother (see s.65DAE).
The mother is concerned that without sole parental responsibility there will be the likelihood of involvement in further litigation, which is a consideration in making a parenting order (s.60CC(3)(l)). The mother is on firmer ground in this submission, as there have already been interim proceedings concerning where the children are to live and the location of the school they are to attend (Mellier & Mellier[6]). The mother has pointed to the fact that the younger child, [Y], appears to have an issue with his language skills, which may impact on when he is ready to start school.
[6] supra
The Family Consultant recommended that consideration should be given “to continuing the Order for parental responsibility in favour of the mother to lessen the risk of further conflict arising between the parents”.[7]
[7] Family Report at [51]
The reason for this recommendation is the Family Consultant’s opinion that:
It is likely that there would be increased conflict if the parents were in a position where they had to discuss issues in relation to the children’s future needs.[8]
[8] Ibid at [50]
The father denies that there is a likelihood of further proceedings in relation to this issue. He did not appeal against the interim orders and has moved closer to the mother’s residence to be closer to the children.
In making a final parenting order, s.61DB of the Act requires the Court to disregard the allocation of parental responsibility made in the interim order, and I have done so. The reasons for allocating parental responsibility in the interim hearing were specific to the issues in that decision.
I am satisfied that the parties should have responsibility for the day to day decisions about the children when the children are in their care. The orders to which they have consented do not provide for the children to spend equal time with each parent but do provide for the children to spend substantial and significant time with each parent. The children will spend weekend and holiday time with their father, but they will also spend school days with their father each week. They will spend time with their father at Christmas time and on Father’s Day. They will be able to be involved in occasions and events of particular significance to them or are of special significance to their father. The proposed arrangements meet the requirements of substantial and significant time set out in s.65DAA(3) of the Act.
If there is to be a concern about future disagreements between the parties about the children’s upbringing, it would appear to be in the areas where there have been disagreements before, namely where the children are to live and matters of their education. The children’s religious upbringing should not be a problem, as the parties have always agreed that they should be brought up in the Catholic faith and attend a Catholic school. The mother has shown a commitment to involving the children in their father’s Tongan culture, although she has expressed a concern that the father does not have the same respect for mainstream Australian culture.
In my view, the issues of where the children should live and their education should be matters where the mother has sole parental responsibility. It would not be desirable for there to be litigation about [Y]’s schooling during the next couple of years. It may be necessary for the mother to change her residence at some time in the future in the course of her employment with [omitted], but her work would be unlikely to take her out of the State of New South Wales.
In other respects, the parties should have equal shared parental responsibility.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 22 March 2011
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