MOXON & FLEET
[2018] FCCA 1279
•29 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MOXON & FLEET | [2018] FCCA 1279 |
| Catchwords: FAMILY LAW – Parenting application – disputed issues mostly resolved by consent – remaining issue of changeover – mother contends that she should not contribute to changeover – father submits that the mother should effect changeover one in four times per fortnightly cycle – neither proposal accepted – child’s best interests paramount consideration – mother assigned responsibility to collect the child one time each month – issue of child’s birthday – order for child to spend time with both parents on her birthday. |
| Legislation: Evidence Act 1995 (Cth), s.140 Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC, 61DA, 62B, 64B, 65DA, 65DAA, 65DAC, 65LA, 65P, 65N, 65NA, 70NAD |
| Cases cited: AMS v AIF (1999) 199 CLR 160 Bell & Nahos [2016] FamCAFC 244 Bondelmonte v Bondelmonte (2017) 259 CLR 662 Collu v Rinaldo [2010] 10 FamCAFC 53 |
| Applicant: | MR MOXON |
| Respondent: | MS FLEET |
| File Number: | MLC 6860 of 2013 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 2 May 2018 |
| Date of Last Submission: | 2 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 29 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Matson |
| Solicitors for the Applicant: | Andrew Croxford & Associates Pty Ltd |
| The Respondent | In person |
ORDERS
All previous children’s orders be dismissed.
The parties have equal shared parental responsibility for the child, [X], born 2010 (the child).
The child live with the Mother.
The child spend time with the Father as follows:
(a)each Wednesday from after school until 7.30pm;
(b)each alternate Friday from after school care until Sunday at 5.00pm, provided that if Monday is a public holiday, until 5.00pm on Monday evening;
(c)for one half of all Victorian term holidays (subject to paragraph 4(d) below) commencing the week that follows on from the Father’s scheduled weekend until 7.00pm Friday;
(d)during the Easter school term holidays, the Father to have the week in which Easter falls in 2019 and each alternate year thereafter;
(e)where Father’s Day falls on a weekend when the child is not with the Father, the child shall spend time with the Father from after school on Friday until 5.00pm Sunday;
(f)where Mother’s Day falls on a weekend that the child is in the Father’s care, the Father’s weekend contact shall be suspended.
(g)on the child’s birthday, in each year:
(i) if it be on a weekend, from 12.00pm to 6.00pm; and
(ii) if it falls on school day, from after school until 6.30pm;
(h)as otherwise agreed by the parties in writing.
Subject to paragraph 6 of this Order, the Father’s time with the child pursuant to paragraph 4(a) and (b) of this Order be suspended during the Christmas/Summer school holiday period and recommence in accordance with the regime set out at 4(a) and (b) from the conclusion of the Christmas/Summer school holiday period each year.
For the Christmas/Summer school holiday period, the Father spend time with the child:
(a)commencing December 2018 and in each alternate year thereafter, from the conclusion of term 4 until 7.00pm on Christmas Eve, and then from 10.00am on Boxing Day until 7.00pm on 12 January; and
(b)commencing December 2019 and in each alternate year thereafter, from 7.00pm Christmas Eve until 10.00am Boxing Day and then from 12 January until 7.00pm on the Sunday prior to the commencement of term 1.
For the purposes of changeover:
(a)on Wednesdays, pursuant to paragraph 4(a) of this Order, the Father shall collect the child from school and return the child to the Mother’s home; and
(b)on alternate weekends, when paragraph 4(b) is operative:
(i)the Father shall collect the child from after school care on Fridays;
(ii)the Mother shall collect the child from the Father’s home at the conclusion of the child’s spend time with her Father at 5.00pm on Sunday evenings provided that if Monday is a public holiday, at 5.00pm on that day,
or otherwise (whether as to the point, date or time of collection), as may be agreed in writing.
The Father can telephone/Skype/Facetime the child each Monday, Tuesday and Thursday between 7.00pm and 7.30pm, and any other times requested by the child or agreed by the parties in writing, provided that:
(a)at first instance, the Father contacts the child on her mobile phone; and
(b)if the Father is unable to communicate with the child on her mobile phone, the Father is at liberty to contact the Mother’s telephone by text for the purpose of making arrangements to speak with the child.
For the purposes of paragraph 8 of this Order:
(a)the parties use their best endeavours and do all things necessary to facilitate the Father’s contact with the child whether such contact be by telephone, Skype or Facetime;
(b)the Mother not hinder or prevent the child from communicating with the Father;
(c)the Mother not interfere with the communication that the child and Father are to have pursuant to that Order.
Where there is a special family event of a party with whom the child is not spending time, that party give the other no less than seven days’ notice of the forthcoming special family event, and the party with whom the child is spending time shall not unreasonably withhold consent to the child attending the special family event.
The party with whom the child is living or spending time notify the other party as soon as practicable of any illness or injury suffered by the child, and/or any medical attention required, and provide the name and address of any medical practitioner upon whom the child attended.
If a party intends to travel overseas with the child:
(a)the travelling party shall give the other party at least 30 days’ notice of their intention to travel;
(b)both parties shall provide their written consent to the overseas travel, such consent not to be unreasonably withheld;
(c)the child’s passport shall be released to the travelling party upon notification of intention to travel; and
(d)the travelling party shall provide to the non-travelling party at least 14 days’ notice details by SMS of the itinerary, contact details and make up time.
All communication between the parties shall be in writing by SMS or email and for this purpose each party keep the other informed of any change to that party’s telephone number or email address.
The parties shall keep each other advised of any change to their residential address.
The parties, by themselves, their servants and agents, be restrained by injunction from denigrating the other party or any member of the other party’s family in the presence or hearing of the child.
The applicant and the respondent shall attend and complete, as soon as reasonably practicable, a post-separation parenting program, involving at least three separate sessions (the Program), at an organisation as nominated by the Regional Coordinator of Child Dispute Services of the Federal Circuit Court of Australia (Melbourne Registry) and shall:
(a)do all that is reasonably necessary to enrol in, undertake and successfully complete the Program;
(b)pay all costs associated with their participation in the Program;
(c)attend and complete, as soon as practicable, any further course or program recommended by the nominated organisation; and
(d)provide a copy of the certificate of completion of the Program/s to the other parties or their solicitors.
NOTATION:
A.All orders, save paragraphs 4(g) and 7 of this Order, are made by consent.
B.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Moxon & Fleet is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 6860 of 2013
| MR MOXON |
Applicant
And
| MS FLEET |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain orders that are made in a parenting dispute between the father and mother in relation to their only child, [X] born 2010 (child).
The substantive issues in dispute concern changeover and spend time on the child’s birthday. Although the parties were able to achieve substantial success in resolving many aspects of their parenting arrangements, changeover is an intractable issue. It is intractable, not by reason of any logistical obstacle to effecting changeover but by reason that the parties have decided to become entrenched on this issue in response to other parenting and financial issues between them. The underlying cause of the parties’ dispute is economic in nature.
Presently, the father does all driving in relation to changeover.
In short, I have decided that it is reasonable that the father should not bear the total responsibility for driving to and from changeover on every occasion that this occurs. Instead, the mother should have some responsibility for driving the child. She should do so in one of four changeover events in each fortnightly cycle.
Procedural history
On 15 August 2013, the mother filed an application for consent orders respecting both property and parenting issues. On 26 August 2013, the Court made orders, by consent, as sought by the parties.
For the purposes of their consent application, the parties filed a statement of agreed facts. Their statement recorded, amongst other things, that the child live with the mother and see the father on a regular basis by agreement and that the father should pay child support towards her care in the sum of $140 per month. The statement of agreed facts also recorded that the parties’ financial position was modest including that the father’s business was of minimal value and that his income varied dramatically and was in the order of $170 per week.
What is of present significance is that those matters were agreed facts.
Additionally, an annexure to the parties’ proposed consent parenting order comprised a certificate in which each party certified that they did not consider their child had been or was at risk of being subjected to or exposed to abuse, neglect or family violence. Risk is still not an issue.
The consent order provided that the child live with the mother and spend time with the father each Wednesday evening at times as agreed, every second Friday evening and each alternate weekend at times as were agreed. The consent order also provided for the child to spend time with her father during holidays, on the child’s birthday, Christmas Day, Father’s day and other special occasions.
A lacuna in the consent orders is that they did not provide expressly for the parties’ responsibilities respecting changeover.
However, at the time of the consent orders both the father and the mother shared responsibility for the delivery or collection of the child from the residence of the other party.
Changeover arises for consideration in the context that the father lives in Melbourne whilst the mother presently lives in Region A.
On 2 August 2017, the father filed an initiating application by which he sought more explicit orders than were provided in the consent order so as to prescribe with greater certainty the precise parenting obligations respecting the child. By para’s 4 and 5 of the initiating application, the father sought orders respecting changeover and to allow the child to communicate with the father by telephone each week day between 7:00pm to 7:30pm whether by telephone, FaceTime or Skype.
The catalyst for the filing of the initiating application arose from the mother’s refusal to agree that the child might travel with the father to (country omitted) for a week in 2017. The application was made in the context that the mother had also travelled to (country omitted) earlier in that year and there was some agreement that the father could likewise travel overseas, with the child, in 2017.
On 29 August 2017, the matter was listed for directions. On that date the parties reached agreement permitting the child to travel with the father to (country omitted). The proceeding was fixed for trial.
The matter next came before the Court for directions on 14 March 2018. The Court was informed that the parties had come closer to achieving consensus respecting the parenting dispute such that no orders were sought on that date.
On 24 April 2018, the proceeding was called over as part of the Court’s program to address the serious backlog of family law cases in this Court. The Court was informed that the parties had attended mediation where further progress had been made. The Court was further informed that the mother planned to move from Region A to Region B in July 2018 and that the child might be moved to a school in Region B.
On 23 April 2018, the father filed an amended initiating application in which he refined the parenting orders to be sought at trial. It appears that the proposed amended application had not been served or only served shortly before the Callover and so the mother opposed the amendment. The judge conducting the Callover on 24 April 2018 left the question of amendment proposed by the amended application for consideration by the trial judge on 2 May 2018.
However, on 30 April 2018, the mother filed an amended response by which she too proposed further refinements to the relief sought in respect of the parenting arrangements for the child.
The parties are to be commended for the efforts taken in attempting to distil the precise parenting arrangements which they sought.
Regrettably, matters took a somewhat negative turn when the father sought, at trial, leave to file a further amended initiating application. The particular amendments sought by this document concerned the question of schooling. In particular, the father sought an injunction to prevent the mother from unilaterally changing the child’s place of school from Region A to Region B.
The mother opposed the amendment, maintaining that she had not been served with the proposed further amended initiating application. At this point, I do not decide whether or not she had been so served. It is not necessary to decide the issue as I refused the application to further amend the initiating application.
Leave to further amend the initiating application was refused on the basis that the parties had agreed in 2013 in consent orders that they should have equal shared parenting responsibility for their child.
Those consent orders had been sought and obtained on the basis of a statement of agreed facts. Those orders had been in place since August 2013. When it became necessary to file an initiating application in 2017, the father again sought that the parents should have equal shared parenting responsibility.
The mother’s response and her amended response are notable in this context. On each occasion the mother also sought that the parties should have equal shared parenting responsibility. Moreover, the parties were in agreement at the trial before me that they should continue to have equal shared parenting responsibility for the child.
In all of those circumstances, I considered that the proposed further amendment should be refused. I did so because schooling is a significant issue and one in which the parties have an equal responsibility, and by extension, entitlement to be consulted, in relation to any change in the schooling of their child.
Whilst I had suggested that it seemed more sensible for the parties to seek a determination of all parenting issues in dispute at the one hearing, I considered that the mother’s objection to the determination of the schooling issue must be upheld on the basis that she has repeatedly agreed that both parents should have equal shared parenting responsibility for their child. As I observed at the trial, it follows that, having objected to the determination of the schooling issue, it is beyond the agreed and ordered regime for equal parenting responsibility that the mother should now consider herself entitled unilaterally to change the child’s schooling from Region A to Region B.
Should it become necessary, in the best interests of the child, to address the schooling issue, it will be necessary for the mother to file an application and seek that relief at some future stage.
Applicable principles
Part VII of the Family Law Act 1975 (Cth) (Act) concerns the subject, Children. It is arranged in 16 Divisions comprising ss 60 – 70Q.
Section 65D of the Act provides that the Court may make such parenting order as it thinks proper. In Bondelmonte v Bondelmonte (2017) 259 CLR 662, the Court said of s 65D at [32]:
A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child.
The objects of Part VII are stated in sub-s 60B(1). They include to ensure that the best interests of children are met by protecting them from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: para 60B(1)(b). The principles underlying those objects recognise certain manifold rights of children with respect to their parents: sub-s 60B(2). The rights of the child expressed in sub-s 60B(2) are, however, subject to an exception “where it is or would be contrary to the child’s best interests”.
In determining the best interests of the children there are certain primary considerations which the Court must take into account: sub-s 60CC(2). The Court must consider:
(a)the benefit to the children of having a meaningful relationship with both of their parents; and
(b)the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
See ss 4(1) (abuse); 4AB(1) (family violence); 60B(1)(c), 60CC(1) (determining child’s best interests); 60CC(2) (primary considerations). Additional considerations are prescribed by sub-s 60CC(3)(a)-(m).
In addition, amendments to the Act effected by s 60CC(2A) require that, in respect of proceedings instituted after 7 June 2012, the Court is required to give greater weight to the need to protect children from physical or psychological harm from being subjected, or exposed, to abuse, neglect or family violence. It is plain that, where the circumstances require, the need for protection from harm as addressed by sub-s 60CC(2)(b) will assume prominence over the child enjoying a meaningful relationship with both parents as addressed in sub-s 60CC(2)(a). This conclusion is reinforced by the exception provided for in sub-s 60B(2) referred to above.
When deciding what parenting orders ought to be made in proceedings under Part VII of the Act, the best interests of the children are the paramount consideration: s 60CA. Accordingly, the principles contained in s 60B(2), which express rights of children in relation to their parents, may yield to the paramount consideration expressed in s 60CA that in deciding whether to make a particular parenting order, a Court must have regard to the best interests of the child. Approached another way, where it would be contrary to the child’s best interests to make orders which accorded priority to the principles in s 60B(2) (as by facilitating the child’s right to spend time on a particular basis with both of their parents or other people significant to their care), the mandate, which is expressed as the paramount consideration to pay regard to the best interests of the child, may support orders appropriate to promoting and protecting the child’s best interests including orders that will operate so as to protect the child from harm.
Evidence
The issues raised in this proceeding are to be determined on the balance of probabilities: s 140, Evidence Act 1995 (Cth). In the determination whether an issue has been established to the requisite standard, the Court is entitled to take into account the nature of the claimant response, the subject matter of the proceeding and the gravity of the matters alleged: sub-s 140(2), Evidence Act.
The parties each relied upon their affidavits, each sworn in August 2017 and April 2018 respectively. In addition, each of the parties had filed a notice of risk. Consistently with the position stated in 2013 when consent orders were sought, their current notices affirmed that neither party considered their child to be at risk of abuse.
To varying extents the parties’ affidavits addressed matters which lay at the periphery of the core issues which now fall for determination. In Williams v Smith (1960) 103 CLR 539, 545, the High Court held unanimously that where divergent views are put in issue “a tribunal of fact may properly refuse to accept either party’s case and work out for itself “a view of the case which did not exactly represent what either party said”; see also Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, [19] (Gleeson CJ, McHugh and Gummow JJ).
In Whisprun, Gleeson CJ, McHugh and Gummow JJ at [62] accepted that the Court is not required to mention every fact or argument relied on by the parties as relevant to an issue. These principles are well settled: Lam v Lam [2017] VSCA 173, [112]-[113] (Whelan, Santamaria and Kaye JJA); Hutchinson Constructions Services Pty Ltd v Les Quatre Musketeers Pty Ltd [2016] NSWCA 135, [61] (Beazley P, Meagher and Leeming JJA); Walsh v Legal Practitioners Board (2016) 125 SASR 111, [49] (Stanley, Parker and Doyle JJ); Kovan Engineering (Aust) Pty Ltd v Gold Peg International Pty Ltd (2006) 234 ALR 241, [45] (Heerey, Weinberg and Allsop JJ); Hunter v Transport Accident Commission [2005] VSCA 1, [21] (Batt, Vincent and Nettle JJA).
Moreover, in the context of a proceeding which calls for the exercise of a discretionary judgment, it is not necessary to refer to or make an explicit finding upon each disputed item of evidence. Rather it is sufficient that the Courts’ findings are appropriately clear: Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, 385-386 (Mahoney JA): see also Molloy & Reid [2018] FamCAFC 89, [42] (Thackeray, Murphy and Aldridge JJ); Cubbin & Cutler and Anor [2018] FamCAFC 84, [13] (Thackray, Ainslie-Wallace and Murphy JJ); Holzmann & Holzmann [2018] FamCAFC 2, [34] (Thackeray, Strickland and Carew JJ); Bell & Nahos [2016] FamCAFC 244, [28]-[29] (Strickland J).
Self-evidently, these principles are appropriate to the determination of parenting proceedings under the Act.
Consideration
I have considered each of the parties’ affidavits and the evidence which they gave at trial and have done so having regard to the principles stated above. Set out below are my findings upon the evidence adduced in the proceeding.
The father now aged 53 years is a (occupation omitted) who was born in Suburb 1, Victoria. The mother now aged 43 years is employed as a (occupation omitted) who was born in Region C, Queensland. They were married on 2009. The parties separated on 29 July 2012, some two years after the birth of their child.
The parties have had a somewhat peripatetic existence.
Following their marriage in 2009, the parties moved at some stage from Australia and lived in (country omitted) from 2011. The mother contends that their marriage broke down some 10 months after they began living in (country omitted). The father contended that in 2012 the mother unilaterally relocated with the child from (country omitted) to Region A. From the mother’s perspective, after she and the child left (country omitted), the father had stayed there for a further six months “at which time I was unaware if he would even return to Australia.” In those circumstances, the mother established herself in Region A. She observed that the father rented accommodation in Suburb 2, then Suburb 3 and finally rented an apartment in Suburb 4, paying modest rent.
Since the making of consent parenting orders in August 2013, the father has travelled each Wednesday from Melbourne to Region A to collect the child from school. He has then spent time with her, and delivered her to the mother’s home that evening at about 7:30pm or a little later. During the period that the father and child spend time on Wednesday evenings, their normal routine is to go (hobby omitted) and then have a meal together in Region A.
As concerned the time that the child spends with her father on Wednesday evenings, it was the mother’s initial practice to assist with the dropping off or collecting of the child either at the commencement or conclusion of time on weekends.
However, in relation to weekends, it was the father’s observation that the mother progressively withdrew from the practice of sharing in the driving to and from Region A to Melbourne, leaving the father to collect the child each alternate Friday and return her to the mother’s residence in Region A each Sunday evening. The father accepts that it is not feasible for the child to be returned to Region A on Monday mornings. While the mother accepted that earlier she had shared some of the driving commitments, she sought to explain that she had only done so at that time as she had been “in a position to do so.”
Contextually, it will be recalled that the father is self-employed and works as a (occupation omitted). His evidence is that he works in a block of one day so that if he has responsibility for driving to collect or return the child to the mother’s residence in Region A he cannot work. While this was the evidence which he gave at trial it stands in contrast with his affidavit sworn on 1 August 2017 in which he deposed that he was instead merely required “to stop work early in the afternoon.” As the mother was self-represented, the father was not tested on this issue.
The mother’s true objection to share in any way with the father the responsibility for the delivery or collection of the child was exposed by her affidavit and viva voce evidence. The mother deposed that in mid-2016, “the father severely reduced the privately arranged financial contribution to [the child’s] expenses and was therefore assessed by child-support to pay $114.42 per calendar month.” The reduction in child support can be seen to represent a reduction of ~$26.00 from the amount which the parties stated as an agreed fact at the time consent parenting orders were sought in August 2017. It will be recalled that, at that time, it was agreed the father was paying child-support of $140 per week. In addition, the mother has found that the father is often very late in making monthly payments of child support. The failure to make any greater contribution for the financial support of the child represented the foundation for the mother’s intransigence in relation to sharing responsibility for changeover.
Although self-represented the mother made a convincing attack on the father’s credibility respecting the payment of child support. She challenged the father to having only paid arrears of child support shortly prior to the mentions of the matters in 2017 and shortly prior to the hearing in May 2018. To my observation, the father’s answers in relation to this issue were less than candid. While the precise detail of the date of child support payments might have been established by the tender of bank statements, that is not an issue I need examine further. For present purposes, the limited payment history disclosed in the evidence suggests that the father paid no child-support in the period between November 2016 – March 2017. Arrears were then paid. The suggestion that arrears of child support had only been brought up to date on the eve of appointed court hearings had a ring of truth about it.
The mother’s resistance to sharing responsibility for changeover may also be explained in part by the circumstance that, while apparently unable to pay child support, the father was able to travel to (country omitted) in 2017 and was also able to afford the cost of taking the child with him on this trip.
At the same time it also appears that the parties had been in dispute respecting the mother’s desire to take the child on an overseas trip (again (country omitted)) in 2017. From the father’s perspective, it was not without irony that when he sought to travel with the child to (country omitted) in 2017 the mother withheld her consent to that trip, thereby necessitating an urgent application to this Court. As noted above, the mother only proffered her consent when the matter was brought before the Court. I do not ignore the background detail to this dispute.
The mother contended that the father’s trip to (country omitted) had been planned deliberately to conflict with her pre-existing plans to visit family friends at the same time (being people whom the father apparently did not like). The mother contended that the father had approached the proposed trip to (country omitted) in an uncompromising manner. She further contended that all communications leading up to the initiation of an application to this Court had been carefully orchestrated and undertaken without any real attempt to explore compromise by a Court-appointed dispute resolution process. Both parties’ written communications had a pre-litigation aura to them.
The mother’s evidence was that she was “not in a position to drive during the working week because I work full time.” From the mother’s perspective, she considers herself to be the sole parent who contributes to the child’s day to day travel arrangements including school, school activities, travel to friends or family parties and any other commitments which the child has as part of her education or social activity life. On these bases, the mother deposed:
As a parent I am aware of the commitment I have to [the child] and don’t see it as fair and equitable if I also had to contribute to the father’s inability to organise the travel arrangements to see his child for the purpose of his own contact. (Emphasis added)
The mother’s evidence indicates, as indeed her opening at trial confirmed, that she sees the present issue in dispute as involving the conflict which exists between the parents as distinct from any difficulties respecting the care of the child herself.
Another issue of conflict between the parties concerns mid-week communication between the child and her father. The father’s evidence was that he had experienced increasing difficulty in being able to contact the child. His evidence was that the mother’s telephone would remain unanswered for four to five calls at a time, particularly when the mother’s new partner was at home. How he knew that to be the case was not explored. In any event, to circumvent this difficulty, the father purchased an iPhone for the child for the purpose of their evening phone calls and, as he deposed “certainly not for [her] use at other times such as school.” However, the father then found that the mother refused to allow the child to use the iPhone which he had provided. The mother has likewise prevented the child from taking the iPhone to school, doing so on the stated basis that “the school will not allow it.” In turn, the father has communicated with the child’s school and ascertained that it has no issue with the child taking her own iPhone to school. At present, the school arrangement is that children with iPhones must provide their phone to the school at the commencement of school each day and collect their phone at the conclusion of the day.
The mother considered that the child spoke to her father most alternate evenings and deposed in her first affidavit that the child had access to her phone which was kept on the kitchen bench. In responding to the father’s affidavit, the mother deposed that she was more than happy to send the phone with the child to school, “at the father’s risk and with the permission obtained by the father consenting same from school.”
At trial, the mother stated that the child had taken the iPhone to her father’s residence one contact weekend and that the phone had not been seen since. The parties were also in dispute whether mid-week phone contact could be suitably facilitated by requiring that the father be permitted to contact the child using her iPhone as distinct from the mother’s mobile phone. Various objections were identified:
(a)the child’s phone may not be charged;
(b)the child may not wish to answer her phone;
(c)the mother did not wish the father to contact the child using the mother’s mobile phone;
(d)the child might prefer not to speak with her father;
(e)the child might be attending after-school sport or watching others at after-school (hobby) or the like.
It appeared to me that the parties were limited only by their imagination in the number of reasons why mid-week communication was, or could be made, problematic.
In the end, the parties were agreed on the proposed order for midweek communication by telephone Skype or FaceTime. The father should be permitted to contact the child using, in the first instance, the child’s iPhone and where communication not be possible, by sending a text to the mother’s phone requesting that the child should contact her father.
The mother presented as an emotional and somewhat distressed person who found the father’s manner of communication with her confronting. The father seemed ill disposed to accept the veracity of the explanations for the child’s supposed unavailability to communicate with him by telephone at the times that he sought to do so.
There was some evidence indicating that the parties’ manner of texting one another in relation to the child’s midweek communication with her father is terse and inconsiderate of the other. Two instances will suffice, each being drawn from texts sent in March 2018:
(a)the mother responded to a request by the father that the child communicate with him stating in part: “once again two nights a week between Monday & Thursday is when you can call” (emphasis added);
(b)the mother explained the child’s unavailability by reason that she was “at (hobby) training with Mr M and the kids, she will call” the father “on Thursday night.” Dissatisfied with that response, the father stated “ask [the child] to call when she comes home, I’m her father” (emphasis added).
The mother’s text in reply pointed up that the father was at that date three months in arrears of child support. As the father tended this text exchange in evidence (exhibit A1), I will assume the truth of the text exchange including that the father was in arrears of child support.
Other difficulties with parenting arrangements have occurred, including in relation to:
(a)the mother’s suggestion that, unilaterally, there would be a change to the child’s place of school in Region A/Region B;
(b)termination of planned spend time for the father over the Christmas school holidays;
(c)the child being made available for spend time without the supply of clothes on some occasions;
(d)denigration of the parties in the presence of their child;
(e)lack of communication concerning occasions on which the child is sick or has been injured.
Whilst the mother contested many of these issues, some insight to the parties’ relations may be gleaned from her explanation that “the father knows that he should have suitable clothing for [the child] at his home and should not rely on me having to supply all of her clothing needs.” The mother contested the assertion that the father had not been consulted in relation to the change of school, producing evidence of an email exchange on the subject which the parties had held in November 2016. The email was quite supportive of the mother’s contention.
I have reviewed the parties’ written communications which were put into evidence. As noted, in some instances their personal communiqués have a quality of carefully crafted pre-litigation statements.
The father’s evidence is that since 2015 the mother has refused to assist in changeover. The mother’s trial affidavit responded that the father had agreed in the consent orders “knowing his required travel commitments.” A difficulty in that response is that it rested on a false premise. The 2013 consent orders contained no agreed arrangement in relation to changeover. It did not deal with changeover at all. Nor did those orders impose a commitment on the father as to changeover. The mother’s evidence on this issue tended to confess and avoid the fact that she too had assisted with travel on the stated basis of the father’s reduction in child care which necessitated the transition for her from part-time to full-time employment. Instead, the mother contended that her “assistance was given in good faith and was in no way meant as a replacement for the father meeting his travel obligations.” The mother now works at (employer omitted) which is located at the Region A in Region A CBD.
The mother adhered to and updated her evidence concerning the father’s dilatory attitude toward payment of child support.
A lacuna in the consent orders is that they did not provide expressly for the parties’ responsibilities respecting changeover. The matter not being expressly agreed, this lacuna has now been identified and is being exploited as a basis for asserting that it is not a responsibility the mother has agreed, or should have to bear.
It is, however, clear that the father takes seriously his parenting role and actively pursues his relationship with the child.
As the mother was concerned, she was not asking that the father reduce his time with the child and believed it was in the child’s best interests to have regular contact with her father. However, she considered that as he was a self-employed (occupation omitted) and did much of his work either on location or using a laptop computer, he was able to schedule his work in a way that could accommodate changeover without the mother’s involvement. The mother submitted that it was neither fair nor equitable that she should be asked to share in changeover responsibilities “given the Father chooses where he lives and I provide for [the child] in every other way while she is in my care.”
The mother accepted as accurate the father’s evidence that she had refused to assist in changeover including that “she will not consent to meeting me halfway at changeover.”
I do not accept that it is reasonable for the father to bear the entire responsibility for changeover arrangements, particularly if the mother is choosing to relocate from Region A to Region B with her partner, as will soon occur. The parenting role requires the active co-operation and support of each party. As the parties appeared to accept before me, the motivation for the present impasse has nothing to do with the parties’ perceptions of what is in the child’s best interests.
Indeed, at their highest the parties’ submissions spoke in generalities about the considerations relevant to the best interests of the child. That they adopted this stance was explicable having regard to the nature of their dispute and the evidence addressed above. Nonetheless, I have given attention to the primary and additional considerations presented by the legislative pathway embodied in sub-s 60CC(2)-(3).
There is no doubt in this case that the child will benefit from having a meaningful relationship with both of her parents. There is no need here to protect the child from harm of the kind addressed by para 60CC(2)(b). The raft of additional considerations presented by sub-s 60CC(3) invite that attention be given to the particular features and circumstances of the individual case.
This is not a case in which I have been able to have regard to the child’s views. The matter in dispute was of relatively small compass and no Independent Children’s Lawyer was sought or appointed.
The child clearly has a close and constant relationship with each parent. This is not a case in which the father has been absent or disinterested in fostering the child’s relationship with him. There is some evidence that the father has failed to fulfil his obligations to maintain the child and that is an issue in which the mother is justifiably concerned. I have taken that matter into account.
The proposed changes in parenting arrangements to be effected by an alteration in the changeover arrangements will not have a relevant effect upon the child’s circumstances. Nor will it entail a practical difficulty or expense of such magnitude as to have an effect upon the child spending time with and communicating with either parent.
Each of the parties has a clear capacity to provide for the child’s needs. Insofar as the mother claimed it would imperil her employment, I considered that this submission was faintly put. In any event, the issue can be addressed by moulding orders which address her concern.
Upon consideration of the evidence referred to above, I conclude that in resolving the present issues in dispute, greater significance should be attached to the matters addressed in [76] above: Collu v Rinaldo [2010] 10 FamCAFC 53, [355] (May, O'Ryan & Strickland JJ) citing Smith & Smith (1994) FLC 92-488. ^
The child is still relatively young. She has had an ongoing consistent relationship with her father each Wednesday and on weekends as agreed between the parties, with other times as stipulated in the consent orders.
I do not consider that the other additional considerations presented by sub-s 60CC(3) are of any or particular relevance in this dispute.
As stated at [4] above, I consider that it is reasonable that each of the parties should share responsibility for driving the child for the purposes of changeover.
The father’s proposal was that the mother should do so in one of four changeover events within each fortnightly cycle. However, the proposal advanced by the father was for the mother to undertake and discharge that responsibility one Friday in each fortnightly cycle. The mother’s objection was that this would imperil her employment. I do not decide whether that is so but will not make an order that may pose a risk of that kind. Some other form of order is then necessary.
While the father’s original proposal or preferred course had been that he should collect the child at the commencement of each period and that the mother should collect the child at the conclusion of each period, he altered his case at trial suggesting instead that the mother should be responsible to deliver the child to the father’s residence on Friday afternoons. As stated above, the mother’s objection to doing this was made on the basis that her full-time work commitments precluded her from being able to do so.
There are at least three points to be made. First, the Court is not required or obliged to accept the proposal of either party. Secondly, the mother’s objection to sharing responsibility for changeover and the impact it will have upon her employment on Friday afternoons will be obviated or resolved by fixing her with responsibility for instead collecting the child at the end of each Sunday afternoon. Thirdly, the mother’s attitude underscores the importance of each of the parties undergoing a post separation parenting program. While the father has undergone some form of post separation program, the mother has not.
The Court is not obliged to accept either party’s proposal as to the orders which should be made. There are at least two reasons why this is so. First, in deciding whether to make a particular parenting order, the Court must regard the child’s best interests as the paramount consideration in deciding what order should be made. Secondly, in making a parenting order, the Court is given power to make such order as it considers proper in all the circumstances: AMS v AIF (1999) 199 CLR 160, [95] (Gaudron J), [196] (Kirby J), [218] (Hayne J), [284] (Callinan J). This conclusion is reinforced by, for example, sub-s 65DAA(7) which provides that, for the avoidance of doubt, the Court must have regard to the paramount consideration of the child’s best interests even where the parties propose orders by consent.
In AMS, Callinan J at [295] recognised that where well intentioned parties presented competing proposals, the Court was presented with making difficult choices that the parties themselves were unable to make. In U v U (2002) 211 CLR 238, at [70], [80], Gummow and Callinan JJ (in whose reasons Gleeson CJ, McHugh and Hayne JJ agreed), observed that, not uncommonly, there would be cases in which it would not be possible for the Court to adopt exclusively or perhaps even substantially a proposal of either party and that it was not bound to do so. Hayne J at [171] considered it would be quite wrong to treat a parenting decision as being confined to the party’s proposals.
More recently, in Cooke & Morton [2018] FamCAFC 9, Ryan, Kent and Clearly JJ observed with respect to the nature of the statutory duties of an Independent Children’s Lawyer that:
. . . it is the child’s best interests that lie at the centre of parenting proceedings, rather than any assumed right, interest, entitlement or privilege of a parent/party to the proceedings.
Thus, it is plain that neither party may arrogate to themselves an assumed entitlement to insist on what parenting arrangements ought to be made. The best interests of the child remain paramount.
In respect of certain parenting orders, parties’ obligations as imposed by orders made under the Act are subject to statutory requirements. Relevantly, a person must not, contrary to an order, interfere with a person or a child from benefiting from spending time with one another under an order: para 65N(2)(b). Nor shall a person contrary to an order interfere with a person or a child in communicating with one another under an order: para 65NA(2)(b). More generally, where parties have agreed on, and orders have been made, allocating equal shared parental responsibility pursuant to sub-s 64B(2), the Act creates reciprocal obligations that neither party may hinder or prevent the other from the discharge of their respective parental responsibilities: para 65P(2)(b). Each of the requirements discussed above is reinforced by s 70NAD which, for the purposes of Part VII, Div 13A of the Act, addresses the consequences of failure to comply with orders that may affect children.
Given the mother’s stated apprehension that her employment may be imperilled if she was required to effect changeover on a Friday night, I have moulded the proposed orders to accommodate that issue. The father sought that the mother should participate in changeover. This was not an unreasonable request. Although he proposed that the mother should take the child to the father’s home each alternate Friday, the mother’s perception that her employment may be at risk can be accommodated.
I have concluded that the mother should be assigned responsibility for collecting the child from the father’s home at the end of each alternate weekend when the child is to spend time with her father. The mother should collect the child from the father’s home at the conclusion of the child’s spend time with her father at 5.00pm on Sunday evenings provided that if Monday is a public holiday, at 5.00pm that day. Of course the parties may, with time, recognise the utility of adopting a more constructive and less regulated approach. To that end, the order will further provide that the parties may otherwise agree as to changeover issues. Those issues may include agreement as to the point, date or time of collection. This could, for example, facilitate the child being collected at some mid-way point between Melbourne and Region A (or Region B). Any such alteration in the court ordered regime would need to be agreed in writing. These are matters for the parties.
To assign responsibility to the mother to collect the child from the father’s home at the conclusion of spend time on Sundays or Mondays (as the case requires), will hopefully circumvent any problem of the kind which was identified by the mother from materialising.
In relation to the consent proposal that the parties continue to have equal shared parenting responsibility, I consider that this is eminent good sense in the circumstances. The Court must apply a presumption that it is in a child’s best interests to have equal shared parental responsibility: s 61DA. The statutory presumption should apply in this case. There is no suggestion or evidence that the presumption should be rebutted: sub-s 61DA(2). The effect of the obligations created by such an order is embodied in s 65DAC. I do not repeat them.
As concerns birthdays, the mother sought that the father only be permitted to see and spend time with the child on alternate years. I do not think that this is either fair or reasonable for the child or the father. The father’s proposal was that the child be able to see him for a period of two hours after school. I accept that submission.
As concerns mid-week communication, the parties were ultimately agreed on a two tier regime under which the father will first attempt to call the child on her mobile phone and failing contact being made, will then be permitted to contact the mother by text using her mobile phone.
As concerns denigration, the parties were agreed upon an injunction to restrain them from denigrating the other in the presence of their child.
Despite their proposal, I do not accept that that injunction is sufficient to meet the circumstances of this case.
The child will be in the parties’ care for at least the next decade and in circumstances where the father has attended one post separation parenting session and the mother has attended no session at all, it is desirable and indeed necessary that they should participate in a post separation parenting program and furnish a certificate of completion of such course to the other. They should enrol in such a course without delay. An order will be made pursuant to sub-s 65LA(1) accordingly.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 29 May 2018
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