MUNSON & MUNSON
[2010] FMCAfam 800
•28 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MUNSON & MUNSON | [2010] FMCAfam 800 |
| FAMILY LAW – CHILDREN – Interim parenting orders – child aged two years – child in hospital – serious medical problems – dispute as to which parent is the primary caregiver – interim family violence order in force. PRACTICE & PROCEDURE – Transfer to Family Court – complex issues – likely need for lengthy hearing. |
| Family Law Act 1975, s.60CA |
| Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286 |
| Applicant: | MR MUNSON |
| Respondent: | MS MUNSON |
| File Number: | SYC 4490 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 28 July 2010 |
| Date of Last Submission: | 28 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 28 July 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Batey |
| Solicitors for the Applicant: | Swaab Attorneys |
| Counsel for the Respondent: | Mr Lloyd SC |
| Solicitors for the Respondent: | Barkus Doolan Kelly |
UNTIL FURTHER ORDER
The child [X], born [in] 2008, live with the Mother.
As and from Sunday 1 August 2010 the child, [X] is to spend time with the Father:
(a)From 7:30am on Wednesday until 7:30am on Friday each week.
(b)From 7:30am on Sunday to 7:30am on Monday each week with the exception of Mother’s day in each year; and
(c)Otherwise as agreed between the parties.
For the purposes of Order (2) above, the parties will collect the child [X] at the commencement of the time and return the child to the other party at the conclusion of the time at the McDonald’s Family Restaurant at [R] New South Wales.
The Mother continue to have sole responsibility for the coordination and administration of the child’s medical needs and treatment and that she keep the Father informed of all medical appointments, changes in treatment and any other matters pertaining to the child’s ongoing treatment.
It is further ordered that these proceedings be transferred to the Family Court of Australia AND IT IS REQUESTED that the Family Court consider expediting the hearing of the matter.
IT IS NOTED that publication of this judgment under the pseudonym Munson & Munson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT Sydney |
SYC 4490 of 2010
| MR MUNSON |
Applicant
And
| MS MUNSON |
Respondent
REASONS FOR JUDGMENT
The orders to be made this afternoon are, of necessity, made in haste. They concern a little girl called [X], who was born [in] 2008. She is currently in hospital awaiting release. Each parent seeks that she be released to that parent’s care.
The application which is being heard this afternoon and originally came before the Court yesterday is an interim application, part of a significant larger application brought by the Father.
The Father seeks orders that [X] should live with him. He seeks orders for spousal maintenance and other orders relating to sums of money which are alleged to be part of the funds of the parties.
I indicated to counsel for the Father and the solicitor for the Mother yesterday that, reading the affidavit material, albeit the material only from the Father’s side, that it seemed clear that the issues raised were ones of some complexity and that the evidence to be led would need to be quite detailed. One reason for that is that the child, [X], was born with serious medical problems, which have affected her development. Indeed, she was not released from hospital until three months after she was born. She is blind, or almost blind, has difficulty sitting up, and requires a considerably greater amount of attention than other children would require. As a result, she requires more time of each parent than would otherwise be necessary.
The history of the parties so far as it is relevant is that the parties were married in the United States and travelled to Australia. The Mother wished to return to Australia. The Father was born in the United States. The Mother is an [occupation omitted] and is employed in a high pressure job, where she is well remunerated. The Father is able to work from home and is, amongst other things, an expert in [omitted] fields. He is working on a project which eventually, he hopes, will be extremely lucrative, but there is no contest that in recent years, and, certainly, in the relevant times, that the Mother has been the bread winner.
There is a disagreement between the parties, and quite a substantial one, as to which parent is and has been the primary care giver. The situation has been exacerbated by the separation of the parties quite recently, and separation in circumstances of some acrimony. Indeed, the Mother made a complaint to the police, and an apprehended domestic violence order was made at the behest of the police on 5 July, this year, and the application came before the North Sydney Local Court on 14 July 2010. I am informed that on that date, the Father appeared and indicated to the Court that it was his intention to defend the proceedings, which have been adjourned for hearing until some date in November.
The order, which was, in fact, a provisional order, is extended on an interim basis until the next court appearance, and I am informed that the Father indicated to the Court that he would consent to that interim order being extended without making any admissions, so as to preserve his position so far as his defence of the application is concerned.
What has brought about the urgency in these proceedings has been the fact that [X] has been admitted to hospital for treatment. Each parent has attended at the hospital, although there is conflicting evidence as to the length of their attendance over that period of time. It is certainly the fact that the hospital indicated that it was the policy of the hospital that only one parent would be able to stay overnight with the child, and it appears that this has been done by the Father. However, the hospital now has the child and wish to release her. Each parent says that the child should be released to that parent’s care.
What the Court has to look at is what arrangements are to be made, with whom [X] is to live, and for what period of time is she to spend with the other parent. The competing proposals are that the Father seeks that [X] should live with him, essentially five days per week, from Monday to Friday, with the flexibility for the Mother to spend some time with [X] on the Friday. The orders sought are as follows:
1. The Father from 7:30am Monday to 7:30am Saturday each week, and
2. The Mother at all other times, with the flexibility to see the child on Friday’s, subject to her workload, and with 24 hours notice to the Father.
The Mother seeks a different arrangement, which was presented to the Court with two affidavits and a minute of orders proposed by the Mother’s counsel. Essentially, what is sought is that [X] would live with the Mother, that she would spend effectively two days per week with the Father and alternate weekends. The changeover time that is proposed is 7:30am on each side, and I am informed that this is an arrangement that coincides with the child’s sleeping and waking routines.
The Father relies on affidavits sworn on the 15th and the 27th of this month. The Mother relies on an affidavit sworn today, filed in Court today. The Father has tendered two other affidavits, one of which was sworn today by one Ms B, and the Mother relies on an affidavit also sworn today by one Mr M, who is the chief financial officer and company secretary of her employer.
The affidavits of the supporting people are necessarily limited and it is the affidavits of the parties themselves that provide the greatest assistance. Nevertheless, as was said by the Full Court of the Family Court in Goode & Goode[1], in an interim application where there is conflicting evidence, it is impossible or virtually so for the Court to make factual determinations.
[1] [2006] FamCA 1346
Ms B’s affidavit relates to her observation of the parties from having lived in the same unit complex. She works partly from home, partly from her own [business omitted]. She refers to conversation which she has had with the Mother and her observations of both parties. It is the thrust of her affidavit that she would see the child more often with the Father than with the Mother, and she quotes the Mother as saying “I am lucky my husband takes care of her.”
That affidavit has been subject to some criticism by senior counsel for the Mother on the basis of its comparative vagueness and being relatively uninformative. The affidavit of Mr M indicates that he supports the Mother and the demands on her time, saying as he does in paragraph 7:
I am aware that Ms Munson’s number one priority is her daughter’s wellbeing and development, and that work comes second.
I support Ms Munson fully in her role as [X]’s primary carer.
Significantly, in paragraph 3 of the affidavit Mr M refers to the Mother making arrangements to work partly from home, saying:
On 24 May 2010, Ms Munson sought to formalise her working arrangements going forward and [C] Ltd confirmed that they were content with Ms Munson continuing to work from home each Friday. In addition, Ms Munson was provided with the option of either working from home or the office on Wednesday and Thursday each week. In terms of Monday and Tuesday,
Ms Munson was provided with the flexibility to attend childcare and parenting commitments as required.
In paragraph 6 of the affidavit Mr M says:
Over the past 3 weeks, [C] Ltd have provided Ms Munson with further flexibility which has resulted in, on average, less than
8 hours each week in the office.
In response to a query from the bench, senior counsel for the Father conceded that there appeared to be some discrepancy between the description of the hours that the Mother was spending away from work, but referred to paragraph 37 of the Mother’s affidavit where she says, inter alia:
I renegotiated with my employer even more flexible arrangements that would enable me to work from home on Monday and Tuesday each week. In addition, I am committed to working from home on Friday each week (which I have always done), and on those days I attend upon the office (that is on Wednesday and Thursday each week) I am permitted to leave for any purpose which is family related or which arises as a result of [X]’s medical needs.
It is that paragraph and the arrangements there that form the basis of the Mother’s claim that the Father should have the care of [X] on Wednesdays and Thursdays, that she would have her on Mondays and Tuesdays and on Fridays, and the proposal would be alternate weekends. One would comment that the affidavit of Mr M shows that he is a most flexible and enlightened chief financial officer and company secretary and deserves great praise for the support that he is apparently willing to provide to the Mother in these circumstances.
As I said, there is not the ability in an interim hearing with conflicting evidence to make a final determination of fact as to who has in fact been the primary care giver and what level of capacity each parent has to attend to this child’s needs. It is clear, however, that each parent has a strong desire to care for this child, although senior counsel for the Mother has suggested that the Father’s expressed desire to have this child in his care for five days a week, Monday to Friday, in fact reflects a rather cynical view that he needs this child to support an application for spousal maintenance. I am not prepared to make that finding. That may indeed be too cynical a view.
It is clear, however, that each parent wants this child to spend time with them and each parent wants to be the one who makes the decision about the child, but each parent acknowledges that the other parent needs to have a substantial amount of time with [X]. It is important for [X] to spend time with each parent. She is very young. She has in fact just turned two and she suffers from some disabilities which make her more dependent on her parents than other children would have.
It is certainly the case that with young children frequency of contact between the child and each parent is of importance to build and maintain the child’s attachment to each parent. There is a need for interim orders to be in place to set a stable routine, because it is going to be some time before any court can make a final determination in respect of this and other matters.
As I have indicated, I am of a view that the appropriate court to deal with this matter, due to the complexity of the issues and the complex nature of the evidence which will need to be led, not least in respect of [X], require that the Family Court would be seen as the appropriate court. I would be very surprised if this matter could be heard in under a week on a final hearing, and probably more. However, in my view, the proposal of neither party is entirely satisfactory to meet [X]’s needs.
The Father’s proposal, which effectively has [X] with him for five days a week, with some flexibility on a Friday, and then the Mother on weekends, has been criticised with some justification by senior counsel for the Mother as providing a block of five days when [X] would not be with her mother. Similarly, counsel for the Father has pointed out that on the Mother’s proposal, if the child was to spend alternate weekends with the Father and each week from the Wednesday morning to the Friday morning, there would be one week each fortnight where she would not be with her father for a block of six days, from the Friday morning one week to the Saturday morning of the other. That, in my view, would be equally undesirable, on the basis that this child needs to spend frequent time with each party.
I am mindful of the fact that there is an interim apprehended violence order in force, but it is necessary for these parties to see each other, and they will need to see each other frequently for two reasons: one, to changeover the child from one party to the other, and two, if necessary, to have appropriate discussions about this child’s diet, medical treatment, etc. If any untoward matter happens on the occasions when the parties meet which forms a breach of the apprehended violence order, then I have no doubt that that matter would go back to the North Sydney Local Court, and it would also be a matter that would be argued in the Court exercising jurisdiction in respect of this matter, and it would be hoped that neither parent would act in such an inappropriate way.
The proposal is that the McDonald’s family restaurant at [R] would be the appropriate changeover place, as it is a public place, and there are many orders made in this Court and, indeed, in the Family Court for changeovers in such a place. It seems to me that that would be appropriate. What does appear, however, is that this child needs to spend frequent time with each party, and, as I said, neither proposal is entirely adequate. I can draw from the Mother’s affidavits the fact that, with a supportive employer, she is able to take the Mondays and the Tuesdays away from the workplace and work at home, and it seems to be settled already that she is able to work at home on a Friday. One would then ask, when looking at the Father’s proposal, why would it not be the case that [X] would be spending every Friday with her Mother.
The alternate weekends cause me some concern for the very reason that Mr Batey of counsel raised, namely, that each other week there would be a block of six days, from Friday of one week to Saturday of the next, where this child would not be with the Father, and, in my view, that, in the circumstances, is too long. What I propose, therefore, is that whilst the child, [X], will live with the Mother, she spends from 7:30am on a Wednesday until 7:30am on the Friday of each week with the Father, and from 7:30am on the Sunday to 7:30am on the Monday of each week. So she will spend every Sunday with the Father, rather than alternate weekends.
It was put to me, I think, by Mr Batey of counsel that for parents in this position that weekends do not have the same significance, but I accept the fact, as Mr Lloyd submitted, that the parties need some weekend time to do other things. I am also mindful of the fact that Father’s Day is coming up, and it would follow that if [X] is with the Father on a Sunday, that on Father’s Day, she will be with him. I have, however, provided that she will not be with the Father on Mother’s day in each year.
I have also considered that one party needs to make the decisions as far as what medical treatment the child should have and that, in the light of the conflict between the parties, there must be one party that would make the decisions. I am of the view that, in the circumstances, as [X] would be spending more time with the Mother in each week than the Father, albeit by only one day, that it is the Mother who should have the sole responsibility for dealing with the child’s medical needs.
I have considered, as I am obliged to do on any interim hearing, the question of equal shared parental responsibility. Whilst I am not of a view that I should make an order at this stage and in these circumstances of urgency that would vary the normal situation, I do note that the orders that I have made will effectively involve the child spending substantial time and significant time with the Father each week, and, in my view, that is desirable.
An order has been sought by the Mother about reserving costs. In my view, the question of costs can be left until another day and another place, and if there are to be submissions on costs, then both parties may wish to submit that there should be appropriate costs orders. It is not a matter that I think it is necessary for me to decide today.
I have also considered the immediate pressing problem as to who is to collect [X] from hospital this evening. On the Mother’s proposal, the time right at the moment would involve [X] being with the Father. However, I am mindful of the fact that the Father has been spending overnight with the child. The Mother has been spending less time with the child, and, in my view, on this occasion, for this week, it is the Mother who should collect the child from the hospital, and the orders, therefore, would commence as and from Sunday morning, when [X] will go to the Father for the first of all the Sundays that she is going to be with him until this matter can be resolved.
I will be making an order transferring the proceedings to the Family Court of Australia. I have been asked by counsel for the Father to consider the question of expedition, and whilst expedition of the hearing of the matter once it is in the hands of the Family Court is entirely a matter for the Family Court, I propose to request that the Family Court consider expediting the hearing of the matter.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 29 July 2010
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