MORTON & CRAFT

FEDERAL CIRCUIT COURT OF AUSTRALIA

MORTON & CRAFT

[2015] FCCA 2742

Catchwords:
FAMILY LAW – Parenting – relevance of parties’ lack of ability to communicate to best interests and reasonably practical considerations.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 65DAA, 65DAA(5), 117(2)(A)

Applicant:

MR MORTON

Respondent:

MS CRAFT

File Number:

DGC 4103 of 2010

Judgment of:

Judge Phipps

Hearing date:

4 June 2015

Date of Last Submission:

4 June 2015

Delivered at:

Dandenong

Delivered on:

9 October 2015

REPRESENTATION

Counsel for the Applicant:

Ms Conlan

The Respondent:

Appearing on their own behalf

ORDERS

That all previous orders are discharged.
That the mother and father have equal shared parental responsibility for the child X born (omitted) 2009.
That the child live with the mother.
That the child spend time and communicate with the father as follows:
(a)Until the commencement of term two in 2016 during the school term:
(i)Each alternate weekend from after school Friday or 3.30pm until before school Monday or 9.00am;
(ii)Each Thursday from after school or 3.30pm to 7.30pm.
(b)From the commencement of term two in 2016 during the school term:
(i)Each alternate weekend from after school Friday or 3.30pm until before school Monday or 9.00am;
(ii)Each alternate week from after school or 3.30pm Thursday to before school or 9.00am Friday.
(c)From the commencement of term two in 2017 during the school term:
(i)Each alternate weekend from after school Thursday or 3.30pm until before school Monday or 9.00am;
(ii)Each alternate week from after school Thursday or 3.30pm until before school Friday or 9.00am.
(d)For one week of each term holiday at times to be agreed between the parents and in the absence of agreement from 6.00pm on the last day of school term until 5.00pm on the middle Saturday of the school term holidays;
(e)Up to the child’s eighth birthday for one half of the long summer holidays at times to be agreed between the parties and in the absence of agreement on a week about basis commencing at the conclusion of school or 3.30pm on the last day of the school year and each alternate week thereafter with the child to be returned to the mother no later than 24 hours prior to the commencement of the new school year;
(f)From after the child turns eight for one half of the long summer holidays as agreed between the parties and in default of agreement from the conclusion of school or 3.30pm on the last day of the school year until 5.00pm on the fourth Saturday in even numbered years and from 5.00pm on the fourth Saturday until 9.00am at the commencement of school on the first day of the school year in odd numbered years;
(g)On Father’s day from 10.00am to 6.00pm;
(h)On the child’s birthday from 9.00am to 2.00pm;
(i)On the fathers birthday from after school until 7.30pm on a school day and otherwise from 10.00am to 6.00pm;
(j)For the Christmas period:
i)Commencing 2015 and each alternate year thereafter from 2.00pm on 24 December to 2.00pm on 25 December;
ii)Commencing 2016 and each alternate year thereafter from 2.00pm on 25 December to 2.00pm on 26 December;
(k)By telephone and electronic communication at all reasonable times;
(l)At such further and other times as may be agreed between the parties in writing or by text message.
The child’s time with the father shall be suspended as follows:
(a)On Mother’s Day from 10.00am to 6.00pm;
(b)On the mother’s birthday from after school until 7.30pm if a school day and otherwise 9.00am to 2.00pm;
(c)For the Christmas period;
(i)Commencing 2015 and each alternate year thereafter from 2.00pm on 25 December to 2.00pm on 26 December;
(ii)Commencing 2016 and each alternate year thereafter from 2.00pm on 24 December to 2.00pm on 25 December.
For the purpose of the child’s time with the father, when the time does not commence and end at school, the father will collect and deliver the child at the mother’s residence.
That each party forthwith notify the other party of any serious illness or injury while the child is in a party’s care.
That each party notify the other of any proposed attendance by the child upon a specialist medical practitioner, and provide details of the medical practitioner and the date and time of the proposed attendance.
The parties each ensure that the other parent is listed as an emergency contact on any enrolments or other documents relating to the child.
That each party is authorised to attend any events and activities ordinarily attended by parents of the child’s school and to receive any information from the school ordinarily received by parents.
That each party keep the other informed at all times of their current contact telephone number and address.
That the mother is permitted to travel with the child to (country omitted) up to 2 times each year for a maximum of eight weeks provided that:
(a)She gives 30 days’ notice prior to any departure in writing to the husband together with a copy of the travel itinerary and flight details;
(b)The wife provide security in the sum of $10,000 to be drawn upon or executed by the husband in the event that the wife and the child do not return to Australia within three days of the date provided in the itinerary to meet the reasonable costs of proceedings to obtain the return of the child, such security to consist of:
(i)A cash deposit in the husband solicitors trust account; or
(ii)A cash deposit into the Family Court of Australia or Federal Circuit Court of Australia; or
(iii)Otherwise as agreed.
That the wife retain the passport of the child.
That each party is restrained by injunction from:
(a)Denigrating the other party to or in the presence of the child or permitting any other person to do so;
(b)Discussing these proceedings with her in the presence or hearing of the child or permitting any other person to do so.

IT IS NOTED that publication of this judgment under the pseudonym Morton & Craft is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 4103 of 2010

MR MORTON

Applicant

And

MS CRAFT

Respondent

REASONS FOR JUDGMENT

Proposals

Mr Morton, the father and Ms Craft, the mother have one child X born (omitted) 2009. The dispute is the amount of time the child should spend with his father.
Both parties propose orders that they have equal shared parental responsibility for the child and that the child live with the mother. The father’s proposal for the child’s time with the father is as follows:
a)Until the commencement of term one in 2016, during the school term from 3.30pm or after school on Friday until 9.00am or before school on Monday, save that if Monday is a public holiday or pupil free day then such spend time period shall conclude at 9.00am or before school Tuesday commencing June 2015 and each alternate weekend thereafter;
b)From term one 2016 during the school term from 3.30pm or after school on Thursday until 9.00am or before school Monday, save that Monday is a public holiday or pupil free day then such spend time period shall conclude at 9.00am or before school Tuesday and each alternate weekend thereafter;
c)Until the commencement of term one 2017 during school term from 3.30pm or after school on Thursday until 9.00am or before school on Friday commencing in June 2015 and each alternate year thereafter;
d)From the commencement of term one 2017, during the school term from 3.30pm or after school Wednesday until 9.00am or before school on Friday in each alternate week thereafter;
e)For one week of each term holiday time to be agreed between the parties and in default of agreement from 6.00pm on the last day of the school term until 5.00pm on the middle Saturday of the school term holidays;
f)Up to the child’s eighth birthday for one half of the long summer holiday at times to be agreed between the parties and in default of agreement on a week about basis commencing at the conclusion of school or 3.30pm on the last day of the school year and each alternate week thereafter with the child to be returned to the mother no later than 24 hours prior to commencement of the new school year;
g)From after the child turns eight for one half of the long summer holidays as agreed between the parties and in default of agreement from the conclusion of school or 3.30pm on the last day of the school year until 5.00pm on the fourth Saturday in even numbered years and from 5.00pm on the fourth Saturday until 9.00am at the commencement of school on the first day of the school year in odd numbered years.
The father then makes proposals for special days, overseas travel and a number of specific orders. The mother makes proposals for the special days and overseas travel as in the order made 7 December 2011.
The wife proposes the child spend time with the father as follows:
a)Each week on Thursday on school days from after school until 7.30pm;
b)On each alternate weekend from after school Friday until the start of school on Monday;
c)The husband collect the child from school at the commencement of time and return the child to the wife’s residence at the conclusion of his time with the child.
The husband’s proposal at the commencement of the hearing was that the child spend time with him during school term from Friday after school to Monday prior to school, from Thursday after school to Friday prior to school and that the time be increased by one overnight stay each year until a week about arrangement was reached. During the course of the hearing he changed his proposal to the one set out above.

Background

The father was born in (country omitted) on (omitted) 1954. He is aged 61. The mother was born in (country omitted) on (omitted) 1970 and is aged 45. The father moved to Australia in (omitted) 1983. The parties met online in (omitted) 2007. The mother arrived in Australia on (omitted) 2008 with her daughter Y from a previous marriage. She was born on (omitted) 1995, lives with the mother and the child and is at university.
The parties commenced living together when the mother arrived in Australia. They married on (omitted) 2008. The child was born on (omitted) 2009 and the parties separated on 17 September 2009. At the time of separation the mother obtained a family violence intervention order which eventually finished on 7 October 2011. Given the nature of the dispute between the parties now the relevance of this order is as background and part of the explanation of the conflicted relationship between the parties.
Proceedings commenced in November 2010 and concluded with consent orders made on 7 December 2011 which provide for the parties to have equal shared parental responsibility for the child, for the child to live with the mother and spend time with the father each week on Wednesday from 9.00am until 5.00pm until the child commences school and each alternate weekend from 5.00pm on Friday to 5.00pm on Sunday. The Wednesday time continued until the child commenced school and after that only the weekend time continued.
The father commenced this proceeding on 11 February 2014. An interim order made on 10 July 2014 provided for the weekend time to be extended from after school Friday to 5.00pm on Sunday and for the child to spend time with the father on Thursday from after school to 7.30pm each Thursday.
The parties agree that there should be an order for equal shared parental responsibility. This means that s.65DAA of the Family Law Act 1975 (Cth) requires that I consider whether equal time is in the best interests of the child and reasonably practicable or if not equal time substantial and significant time. Equal time is not proposed and so I must consider substantial and significant time.
The paramount consideration in making parenting orders is the best interests of the child. This is in s.60CA. Section 60CC sets out the matters which must be considered in determining what is in a child’s best interests. These must be looked at in light of the objects and principles of the children’s provisions of the Family Law Act 1975 (Cth) set out in s.60B.
The relevant considerations are:
a)The first of the primary considerations, the benefit to the child of a meaningful relationship with each parent;
b)These additional considerations:
i)The child’s views;
ii)The child’s relationship with each parent and other significant people, in this case, the mother’s other child and the father’s partner;
iii)Extent to which each parent has participated in the child’s life;
iv)The effect of any change in the child’s living arrangements, and;
v)The ability of each parent to provide for the needs of the child including intellectual and emotional needs.
The child’s age, sex and particular circumstances are a relevant consideration and can be dealt with shortly. The child is a six-year-old boy. He commenced school in 2014 and so now is in grade 1. Since separation he has lived mostly with his mother and half-sister. According to the mother the sister has a boyfriend who has some involvement in the child’s life. He has spent time as already described with his father. In his affidavit, filed 1 May 2015, the father, describing proposed arrangements for the child, says that his partner, who is currently unemployed, will also be supervising the child when he spends time with the father. Presumably this is already happening.
Ms J prepared two family reports dated 10 June 2014 and 22 May 2015. In both reports she recommends against equal time because of the conflict between the parties and so their inability to communicate and cooperate to the extent necessary if the child is to spend equal time. She describes their parenting as parallel parenting rather than co-parenting. In the first report she also refers to the child’s young age.
For her recommendation on the child’s time with the father she says:
It is my view that X should spend time with Mr Morton alternate weekends from after school Friday to the start of school Monday as well as each Thursday from after school to 7:30pm. That in 12 months the spend time could increase to alternate Thursday overnight and the following year the alternate weekend could start on Thursday after school to the start of school Monday. It is my view that X would manage such an arrangement but in the meantime Mr Morton and Ms Craft must attend reportable child focused counselling and stop blaming each other. It is my view that on X reaching 9 or 10 there may be an option for a shared care week about arrangement but meantime Mr Morton and Ms Craft must work at minimising their conflict and working on their communication.
The parties attended child focused counselling with Ms W. There were two joint sessions. The father had two individual sessions and the mother had one individual session. The father wanted the counselling to continue but the mother did not. The parties communicate by text and email which the father says is effective because if they are together they argue. All of this confirms Ms J’s conclusion that communication and cooperation between the parents is poor.
Ms J’s observation of the child with each parent demonstrated a close and affectionate relationship. Ms J formed the conclusion that each party has the ability to provide for the child’s emotional and intellectual needs. In her oral evidence she described them as very caring, as singly focused on the child. The evidence shows that the child has a meaningful relationship with each parent so that the first of the primary considerations is satisfied. Under this consideration it is a question of how that meaningful relationship with each parent can be promoted. This can be looked at in terms of the additional considerations.
The child told Ms J that he wants to spend more time with his father. This must be put in the context of his age and Ms J’s remark that children often try to cope with the conflict between their parents by attempting to be fair to each of them. Ms J concluded that the child does want to spend more time with his father and this is an appropriate and genuine wish.
So far as the child’s relationship with each parent and others are concerned again Ms J’s evidence shows the good relationship with each party. The mother is his principal carer. The mother complains about the father’s care for the child such as returning from time with the father with cuts, bruises and insect bites, and on one occasion a viral infection on his skin. She also says that the child has complaints about the father but this is not reflected in Ms J’s observations of the child with the father and her interview with the child, nor in her description of each parent being singly focused on the care of the child.
The child’s relationship with his older sister is of some relevance but must be seen in the context of the age difference. Ms J referred to this and says that his position is like that of an only child. Given the child’s happy relationship with his father, and no complaint about the father’s partner, his relationship with the father’s partner must be satisfactory, but she did not give evidence.
So far as participating in the child’s life the evidence shows that the father has. The child had an operation because of his sleep apnoea. There were some issues about the extent to which the father was involved in the specialist consultations and attendance at hospital. The father was obviously involved. The extent to which it was is of little consequence. He cares about the child and has a good relationship with the child.
As to the effect of any change, Ms J’s evidence is relevant. While she recommends an increased time she maintained her recommendation that it be done cautiously so as to ensure that the child would cope with it. She accepted that it could be done more quickly but still recommended caution. She emphasised the difficulties caused by the parties’ poor communication and potential conflict.
Counsel for the father put to Ms J that the time could be increased to eight nights with the mother and six nights with the father in a fortnight as the father proposed. Ms J said that this could be done and her recommendation was effectively that for when the child is nine or ten, but only if the parties communication and cooperation had improved. This was the reason for her recommendation for the parties attending reportable child focused counselling and that they stop blaming each other. In her report she said it is sad that each parent feels powerless as a parent and of the perception that it is the other parent who had the power. Unfortunately the parties’ evidence at the hearing did not displace this observation of Ms J. Ms J said that two sessions with Ms W were not sufficient to improve the parties’ relationship. Nothing in the evidence gave any confidence that the parties could make satisfactory progress in improving their relationship by attending counselling.
The effect of Ms J’s evidence, which I accept, is that an increase in the child’s time with the father done too soon would have an adverse effect on the child. I accept Ms J’s evidence that the parties’ inability to cooperate and the conflict means that an increase to six nights with the father in a fortnight would have a detrimental effect on the child.
The other consideration is each parent’s ability to provide for the needs of the child. The child’s excellent relationship with each parent and Ms J’s opinion, which again I accept, shows that each party does have this ability, including the ability to provide for the child’s emotional and intellectual needs. Each party has suitable accommodation.

The mother raises issues about the child returning with insect bites and scratches and at one time a skin condition Molluscum. None of this is out of the ordinary for a child at this age and the circumstances in this case and says nothing adverse about the father’s ability to care for the child.
The child’s best interests are met by Ms J’s recommendation. The mother opposes an increase in time but the child’s relationship with the father is such that the child will benefit from having an increase in time. The time cannot go beyond him being with his mother for a majority of the time because of the conflicted relationship between his parents. Ms J’s proposal accords with the child’s views, that is that he wants to spend more time with his father.
Ms J’s opinion that time might be increased, even to equal time, when the child is nine or ten cannot be given any effect at present. This is dependent upon the parties’ ability to communicate and cooperate. Ms J recommends reportable counselling but neither party proposes such an order other than that the father proposes that the parents engage in mediation at a family relationship centre to assist with the implementation of the order and any long-term decisions. The parties attempted counselling but it was unsuccessful. Nothing in the evidence suggests that any further attempt might meet any more success.
The parties differ on proposals for birthdays and Father’s Day. The current order, which the mother proposes should continue, provides for the child to spend substantial time with his father on these days, and makes provision for the mother’s birthday and Mother’s Day. I can see no reason to change them.
Each party proposes that the child be permitted to travel internationally. Both propose that the mother provide a security of $10,000. The father proposes that the travel be once every year with six weeks’ notice. The mother proposes an order that she be at liberty to travel with the child to (country omitted) up to two times each year for an aggregate of up to 8 weeks upon 30 days’ notice. This is part of the existing order made on 7 December 2011. There seems no reason why it should not continue.
The mother’s family is in (country omitted) and the child has a half-sister, admittedly considerably older, born in (country omitted). Although there is no specific evidence about this, common understanding suggests that for the child to have a familiarity with the place of origin of his mother and his sister is of benefit to the child. I am satisfied that the mother will promote the child’s education and will not travel at times which will interfere with that education. Being out of Australia will interrupt the child’s time with the father but this has occurred before and the child’s relationship with the father remains strong. While an order for make-up time can help with this, I am not confident of the parties’ ability to negotiate the appropriate make-up time.
The considerations for reasonable practicality are in s.65DAA(5). The parties live close together. The other considerations can be summarised as the ability to communicate and cooperate in the carrying out of the orders. To put it in terms of the requirements, Ms J’s opinion is that the parties lack the necessary ability to communicate and cooperate so as to make any time with the father beyond what Ms J recommends reasonably practical.
The mother’s proposal includes that the father pay her costs. None of the considerations in s.117(2)(a) favour an order for costs.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date: 9 October 2015

[2015] FCCA 2742

9 October 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness