Nardo and Nardo (No. 2)

[2013] FamCA 356

FAMILY COURT OF AUSTRALIA

NARDO & NARDO (NO. 2) [2013] FamCA 356

FAMILY LAW – CHILDREN – Interim parenting – Where it is agreed overnight time should commence – Where the Independent Children’s Lawyer seeks a cautious approach as to overnight time commencing and the father seeks overnight time commence immediately – When the father’s overnight time should commence – What extent of overnight time the father should spend with the child – Where the mother alleges family violence perpetrated by the father and where the father makes absolute denials – Where there is high parental conflict and a lack of communication between the parties

Family Law Act 1975 (Cth)

Briginshaw v Briginshaw (1938) 60 CLR 336

APPLICANT: Mr Nardo

RESPONDENT: Ms Nardo

INDEPENDENT CHILDREN’S LAWYER: Ms Ryan

FILE NUMBER: PAC 5293 of 2011

DATE DELIVERED: 7 February 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 7 February 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr El-Hanania

Saba El-Hanania Lawyers

COUNSEL FOR THE RESPONDENT: Ms Druitt

SOLICITOR FOR THE RESPONDENT:

Ms Shedden

Shedden & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Ryan

Legal Aid NSW

Orders

1. That I grant such leave as is required leave to the husband’s solicitor to reopen the evidence in respect of interim parenting matters in relation to a communication book.

1. That I reserve Judgment as to interim parenting matters until 2.15 pm today, and if I am able to, I will deliver Judgment in respect of the disqualification application immediately following.

Later

1. That I discharge Orders 12, 13, 14, 15 and 16 of 30 November 2012.

1. That in lieu thereof, I order that the child C born … July 2009, (“the child”) spend time with her father as follows, as set out in subparagraphs (a) to (e) of the  minute of order prepared by the Independent Children’s Lawyer and exhibited to me in these proceedings:-

(a)    Until Friday 5 April 2013, each Saturday from 9.00 am until 5.00 pm;

(b)Thereafter, each week from after pre-school/school on Friday until 5.00 pm on Saturday commencing on Friday 5 April 2013;

(c)On the Father’s Day weekend, the time referred to in Order 1(a) above shall be suspended and instead, the father shall spend time with the child from 3.00 pm on the Saturday before Father’s Day until 5.00 pm on Father’s Day;

(d)From 3.30 pm on Christmas Eve 2013 until 3.30 pm on Christmas Day 2013;

(e)Such other times as the parents and the Independent Children’s Lawyer may agree in writing.

1. That I make an order in accordance with paragraph 2 of the minute of order prepared by the Independent Children’s Lawyer, as follows:-

For the purposes of changeover, the father shall collect the child from her pre-school/school (if a school day) or from the [B Contact Centre] (if a non-school day) at the commencement of his visits and shall return the child to the [B Contact Centre] at the conclusion of his visits.

1. That I make an order in accordance with paragraph 3 of the minute of order prepared by the Independent Children’s Lawyer, as follows:-

That the parties shall share equally in the costs of the changeover service.

1. That I make an order in accordance with paragraph 4 of the minute of order prepared by the Independent Children’s Lawyer, as follows:-

In the event that it is not a day where [the child] attends pre-school/school and the [B Contact Centre] is unable to assist the parents by providing a changeover service, changeover shall occur inside the McDonalds Restaurant located at [… D Street, Suburb E].

1. That I make an order in accordance with paragraph 5 of the minute of order prepared by the Independent Children’s Lawyer, as follows:-

The parents shall utilise a communication book in order to exchange information in relation to [the child’s] general progress, health and welfare and the communication book shall be exchanged between the parties at changeover.

1. That that the parties shall attend, preferably separately, at any course recommended and designated by the Independent Children’s Lawyer.

1. That I stand the matter over to deliver the Judgment in relation to the wife’s disqualification application at 3.00 pm tomorrow. The Independent Children’s Lawyer is excused from attending on that occasion.  

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nardo & Nardo (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5293 of 2011

Mr Nardo

Applicant

And

Ms Nardo

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. The matter I am required to determine involves the competing applications of the parties as to the time the father spends with the child.  It appears to be agreed there should be an increase, but the increase sought by the father is significantly more than that which appears to be conceded by the mother.  The mother’s proposed orders are to be found at paragraphs 2 to 12 of her Response to an Application in a Case filed 5 February 2013.  I do not propose to set them out in detail.

2. The father’s position was enunciated at the commencement of the hearing and his position has been amended as the matter has proceeded; the last of his proposed orders being made clear at the time of submissions.  The father seeks, in opposition to the mother’s proposal, that he have time from Friday to Saturday and then from Monday to Tuesday of the week.  As I understand it, even that latter part of this proposal has been amended.  He has changed the time of commencement on Monday from 10.00 am to 3.00 pm.  He has additionally sought an order for contact between the parents by SMS, and he has sought telephone contact with the child on Wednesday between 6.00 pm and 6.30 pm, with the father to telephone the mother to facilitate those occasions of time.

3. I have been handed, as part of her case, a minute of order by the Independent Children’s Lawyer.  A number of the matters appearing in that document are in fact agreed to. The father agrees with her proposed order 1(a), which would give him time with the child from a Friday until Saturday evening.  He does not agree as to the commencement time suggested by the Independent Children’s Lawyer, and says, indeed, that time should start this Friday.  The father agrees, as I understand it, with a suspension of the mother’s time in respect of Father’s Day as proposed by the Independent Children’s Lawyer.  He also agrees, as I understand it, with the proposal for Christmas Day, with the proposed order 5 as to the continuing use of a communication book.

Brief background

1. A brief background to this matter is as follows. 

   ·The husband was born in 1977 and the wife in 1981. 

   ·The parties married in January 2002 and separated on a final basis on 6 September 2011. 

   ·There is one child the subject of these proceedings, C, born in July 2009, (“the child”).  She is currently three and a half years of age.

The material before me

1. The material that I have read is as follows.

2. In the mother’s case:-

   ·Her Response to an Application in a Case filed 5 February 2013 as to interim parenting orders sought;

   ·Her affidavit sworn 5 February 2013 and filed 5 February 2013;

   In the father’s case:-

   ·His Application in a Case filed 28 November 2012;

   ·His affidavit sworn 16 January 2013 and filed 17 January 2013;

   I have also read a number of reports to which I was referred, being:-

   ·    A report of psychiatrist Dr F;

   ·    A report of the Family Consultant in this matter; and

   ·    A report of Mr G as a Regulation 8 counsellor who interviewed these parties.

The parties’ submissions

1. I heard submissions from the parties’ legal representatives - firstly for the mother, secondly for the father and then from the Independent Children’s Lawyer, followed by a response in some detail from the father’s solicitor, in which, as I have already said, it was made clear to me that there were further amendments to his initial position.

2. I will deal with the father’s case first.  His case is that his time with the child is going very well indeed, and to this extent, he produces in his affidavit a series of photographs of the child clearly enjoying time with him.  In a number of those photographs, the child is also depicted with other family, and the relevance of this I will endeavour to return to later in these Reasons for Judgment.  He says there is no need to wait to extend his time with the child and that extended time should commence immediately, and indeed, that such would be of benefit to the child.

3. In response to the submissions made on behalf of the mother and the Independent Children’s Lawyer, he dealt at some length with the allegations of violence made against the father.  As I understood it, trying, indeed, to satisfy me that these allegations were without foundation.  The difficulty, of course, in any interim proceeding, is that I have not heard evidence of either party, nor have I heard from the expert in relation to that.  The evidence concerning the allegations is untested.  The only way that a determination can be made as to the truth or otherwise of those matters is upon a contested hearing, when the parties can be dealt with, particularly by way of cross-examination, in an endeavour to ascertain where the truth lies.  In the meantime, I am left with the situation that I have serious allegations and absolute denials.  I do not accept that I would necessarily find that, because of the recommendations of Dr F that she believes based on her report that, the allegations are baseless.

4. The father’s counsel endeavoured to rely upon parts of a Judgment of FM Harman of the Federal Magistrates Court, which, with great respect, to my mind, do not make out the case that he is seeking to put before me, that there is clearly established that the mother’s allegations are the same as the allegations made by her mother in proceedings between the mother’s mother and father. 

5. In any event, the father says the child is comfortable, enjoys being with him and it would be to her benefit for his time to be increased. 

6. The mother’s case is that there should be an increase.  The mother herself concedes that overnight time should occur.  However, it is her case that it should be to a lesser extent than proposed by the father, and, indeed, it should not occur immediately.

7. The Independent Children’s Lawyer adopts much of that position.  It is her case that there have only been limited occasions where the father has spent time with the child and that what is required from here is to take the matter slowly, rather than rapidly, so that the time the child spends with the father can, indeed, be for her benefit. 

8. There are difficulties that the Independent Children’s Lawyer has alerted me to.  The father, in the past, has made it clear that he would only comply with orders that he believes are correct.  There was certainly the situation when, with an ability to see the child at a contact centre, he chose on a majority of occasions not to do so because he apprehended that this would be seen as some form of admission on his part.  Where he got that belief from, I do not know.

9. I am concerned, based on that, that there might be some reluctance of the father to accept orders if he does not completely agree with those orders. 

10. Accordingly, the issues I have to determine are not whether there should be an increase, not whether it should move from daytime to overnight, but what the increase in the father’s time should be, bearing in mind the positions taken by the mother and the Independent Children’s Lawyer that overnight time should commence.

The law to be applied

1. These are proceedings of a parenting nature.  I have dealt with this matter once before and have given brief reasons for Judgment, which I adopt again here.  However, it seems to me that, because this particular interim hearing relates to parenting matters, I am required again to deal with the relevant sections of the Family Law Act 1975 (Cth) in reaching a determination of what is in the best interests of this child.

2. The first of the matters that I must have regard to is the requirement to balance the need for a child to spend time or, in using the wording of the particular section of the Act itself, have a “meaningful relationship” with a parent, against the need to protect the child from harm (see subsection 60CC(2)).

3. Subsection 60CC(3) then sets out the matters that I must take into account.  Subparagraph (a) of that subsection deals with views expressed by the child and factors underlying those views, such as the child’s level of understanding.  It is clear that it is the father’s case that the child has said she wants to spend more time with him, and there has been mention of sleeping in her bed.  I am satisfied that those wishes, expressed by a child of her age, are by no means determinative in this matter.  I am also concerned that, having regard to the level of dispute between the parties in this matter, the child, notwithstanding her age, has a knowledge, be it conscious or subconscious, that her parents are fighting over her, and I am satisfied that it is highly probable that a child of her age would say to each parent whatever she believed would make that parent happy. 

4. Accordingly, I place little faith in what is said to be the expressed wishes of the child.  Having said that, I am not to be taken as saying she does not enjoy her time with her father, but that is an entirely different thing from that which the father’s solicitor seeks to promote.

5. The next matter I will consider is the nature of the relationship of the child with each of the parents (subparagraph (b)).  There is no doubt that the mother has been the primary caretaker of this child.  There is no doubt there was a period of time where the father was entirely absent from her life by his own choice.  I have no doubt that the child loves her mother, and I have no doubt that she loves her father.  However, in my view, at the present time, those two levels of love cannot necessarily be equated.  I am satisfied that the father desperately wants the orders that he seeks.  I am not necessarily satisfied, however, that this is simply because he wants to spend more time with his child.  I have the uncomfortable feeling that much of this parenting litigation has been conducted on the basis that the father wishes to be seen as right in this situation. 

6. The child clearly also has a relationship with members of her extended family, and I am concerned that the father may well see the child spending time with him as being time she should spend with members of her family, rather than with him.

7. As to the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child (subparagraph (c)), the mother does not fare well in this regard.  I am satisfied that she has, where possible, been less than cooperative in respect of the father extending his time with the child.  I am not able to make any similar finding in respect of the father.

8. As to the likely effect of any change in the child’s circumstances (subparagraph (d)), in the event that I were to accede to the father’s orders as sought, it would clearly mean that the child would go from spending no overnight time with her father to spending each Saturday night and each Monday night with her father, as well as having Saturday, part of Monday and Tuesday with her father.  That, to my mind, is a significant and substantial change for the child.  I am not satisfied, on the evidence before me, that it is something that the child would necessarily cope with as easily as the father instructs his solicitor to put to me that she would.  I am satisfied that the effect of that increase in time carried out immediately might well be of some difficulty for this child to manage.  It would certainly mean separating the child for longer periods from her mother and I have concerns, as I have said, that this would not be in her best interests. 

9. The practical difficulty and expense of time (subparagraph (e)) is, to my mind, something manageable.  I note that the father has, as part of his case, proposed that changeovers not occur at a contact centre or from preschool, but from each of the parents’ homes.  I find that that situation is probably unworkable and I will return to this aspect later in these reasons for Judgment. 

10. As to the capacity of each of the child’s parents to care for the child (subparagraph (f)), the mother clearly has a proven capacity, on past performance, in caring for the child.  The father’s capacity is untested.  For a period of time he chose not to even endeavour to exercise that capacity.  I am concerned that at the present time much of his care of the child is undertaken by members of his family in the manner in which he has described the periods of time he has spent with the child since he was entitled to spend time with the child away from the contact centre. 

11. As to the maturity, sex, lifestyle and background of the child (subparagraph (g)), the child is three and a half years of age.  I have said all I would wish to say in regard to that.

12. As to the attitude to the child and the responsibilities of parenthood (subparagraph (i)), these parties are locked in as bitter a bout of litigation as I have ever been involved in.  It seems to me that both of them are more concerned with having their position proven right and being approved by the Court, than focusing on what is indeed in the best interests of this child.  It would seem to me that both these parties, however the knowledge is to be obtained, are in desperate need of understanding what is required of them as parents of this child.  There are many years in front of both of them and they will have to learn to cooperate, at least at a minimum level which is not evident yet, rather than concentrating on winning the legal or forensic battle and thus receiving the approval of the Court.

13. Family violence (subparagraph (k), despite the very best efforts of the father’s solicitor, remains an issue.  The mother makes allegations against the father, which the father denies absolutely.  There are reports by various people which do not resolve the matter at the required level of proof which, in my view, would be in accordance with the Briginshaw[1] test and accordingly, the allegations remain untested and, as was pointed out to me by the Independent Children’s Lawyer, caution is what is required in this matter. 

    [1] Briginshaw v Briginshaw (1938) 60 CLR 336

14. I am satisfied that I must balance the matters that I have set out above in coming to a determination as to what is in the best interests of this child in the interim.  I am satisfied that the father’s proposal for changeovers to be at each other’s homes, with the mother delivering the child to him and him returning the child to her, would be not only unworkable, but might well lead to further escalation of the difficulties in this matter.  The reason I say that is, on my observation of the parties and the reading of the material, they simply cannot help themselves.  I would not trust them coming into contact with each, particularly with their daughter present or in the vicinity, if it were not in some supervised situation. 

15. The basic or most fundamental matter for me to decide is whether or not the periods of time should be as the father seeks, or as the Independent Children’s Lawyer seeks.  It seems to me that there is no immediate benefit to the child in having the amount of time the father contends for.  I am not satisfied that he should spend time with the child from whatever time on Monday overnight to Tuesday night.  I am satisfied that as a starting point Friday overnight to Saturday is the appropriate time he should spend with the child, and the only appropriate time he should spend overnight with the child at this stage.  I am satisfied that in all the circumstances of this case, it is appropriate that that not commence immediately but the father continue the time he is presently spending with the child for a period of time.  Whilst I see no special magic in it, Friday 5 April 2013 seems to me to be as appropriate a date as any for the first period of overnight time. 

1. I see no benefit in making an order for SMS communication simply, again, because I do not trust these parties and I believe such an order would be abused.  At the present time, I see no benefit in the father having the right to telephone the child.  Leaving aside her youth and her possible ability to say a half dozen words to the father, which may well give him some comfort, I am concerned that for such communication to occur would involve the father telephoning the mother’s household and speaking to the mother, or a member of her family, before he spoke to the child.  To my mind, with the level of communication, or lack thereof, that presently exists between these parties, that situation would be an impossible one. 

2. Accordingly, I propose to order that the child continue to spend time with the father in accordance with the current Orders up until 5 April 2013.  That time is each Saturday from 9.00 am until 5.00 pm.  Thereafter, I shall order that the father spend time with the child from after pre-school or school on a Friday until 5.00 pm on a Saturday commencing 5 April 2013.

3. I will make the orders that the father agrees to as to his time with the child on Father’s Day and Christmas Day.  I propose, as recommended by the Independent Children’s Lawyer, that changeover take place either from the child’s pre-school on a Friday afternoon or facilitated by B Contact Centre.  To my mind, the father picking up from school is an excellent proposition.  It gives him the opportunity to be involved with the pre-school community, with both teachers and parents.  It gives him the opportunity to be aware of what is happening with his child at that institution.  It also eliminates the risk of these parents having to come into contact with each other, at least for the time being, until both of them have learnt how to cope with such a situation.

4. I therefore make the orders as set out at the forefront of these reasons for Judgment.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 7 February 2013.

Legal Associate:       

Date:    23 May 2013