Nepean and Treloar
[2009] FMCAfam 745
•14 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NEPEAN & TRELOAR | [2009] FMCAfam 745 |
| FAMILY LAW – Parenting – interim orders – equal shared parental responsibility – substantial and significant time – publication. |
| Family Law Act 1975, ss.68B, 114, 121 |
| Applicant: | MR NEPEAN |
| Respondent: | MS TRELOAR |
| File Number: | SYM 3471 of 2006 |
| Judgment of: | Altobelli FM |
| Hearing date: | 13 July 2009 |
| Date of Last Submission: | 13 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 14 July 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Lloyd |
| Solicitors for the Applicant: | Paul & Paul Lawyers |
| Counsel for the Respondent: | Mr Batey |
| Solicitors for the Respondent: | Slade Manwaring Solicitors |
THE COURT ORDERS PENDING FURTHER THAT:
All previous parenting orders be vacated.
The parents are to have equal shared parental responsibility for the child [X] born in 2003.
The child, [X] born in 2003, live with the mother.
The child spend time with the father as follows:
(a)At all times that the parents agree;
(b)From 10am Thursday 16 July 2009 to 6pm Sunday 19 July 2009 in Sydney; and
(c)From Friday of week 1, Term 3, and thereafter each alternate weekend from after school on Friday to before school on Monday in Sydney; and
(d)
During the October school holidays for a period of 4 days and
3 nights commencing at 10am on Day 1 and concluding at 6pm on Day 4 and if the parents are unable to agree when contact commences, Day 1 will be the Friday of the first week of the school holidays; and
(e)
During the December/January school holidays for 2 periods of
5 days and 4 nights commencing from 10am on Day 1 and concluding at 6pm on Day 5 and if the parents are unable to agree Day 1 will be the Thursday of the 2nd and 5th weeks of the school holidays; and
(f)On Father’s Day 2009 between 10am and 6pm irrespective of whether it is a contact weekend; and
(g)From 3pm on Christmas Day to 6pm on Boxing Day.
Each parent will do all things necessary to facilitate [X] communicating by telephone with the parent with whom she is not living or having contact with no less than every 2nd day when she is with her father, and no less than twice a week when she is with her mother.
The father is not limited to having contact with [X] in Sydney during the school holidays but must advise the mother of where [X] will be staying and how she can be contacted during this period. The father to bear all costs associated with travel outside of Sydney.
Pursuant to section 13C of the Family Law Act 1975 the parties must within 14 days contact Relationships Australia on (02) 8874 8010 to arrange an appointment as soon as practicable for an initial post-separation parenting assessment.
In making their appointment, parties are to state that their attendance is pursuant to an Order of the Federal Magistrates Court.
Parties are to cooperate with providing intake information and details to Relationships Australia and must attend the intake appointment at any reasonable location nominated by Relationships Australia and complete the assessment.
If assessed as suitable and Relationships Australia nominates counselling, mediation including child inclusive mediation or a post-separation parenting course to attend, the parties must attend (as the provider directs) as soon as practicable.
The parties shall comply with the requirements of the nominated program and the recommendations of the program coordinator including any referrals to complementary services.
Relationships Australia is requested to provide a brief report as regards the parents’ progress to my Associate, on fax number 02 9217 7191, no later than 28 January 2010.
The subpoena issued by the father to [B] on 14 May 2009 and the mother of 12 June 2009 be discharged.
The father be and is hereby restrained from doing anything or permitting any other person from doing anything to reveal, whether by publishing, internet or any other form of communication, information pertaining to any proceedings or information that identifies, or may identify the child [X] and/or the mother, whether by use of their names or pseudonyms, in respect of these proceedings or at all other than to immediate family or his partner, or obtaining or disseminating any information that relates to the mother’s employment with [B], other than with the express written authority of the mother, nor will he permit or facilitate any other person to do so.
For the purposes of order 14 herein the father cause to be removed any existing blogs, posting and/or emails that are currently posted on the internet or such other electronic file sharing site, and notify any prospective or existing publisher of the restraint preventing publishing of any material falling in the description in Order 14 herein.
Without limiting the generality of orders 14 and 15 the father is not to publish the manuscript the mother has identified as the book in these proceedings, and the father is not to disseminate any material concerning the mother or [X] that would contravene the provisions of s.121 Family Law Act 1975.
The mother as soon as practicable attend upon Ms B at dates and times as directed by Ms B for the purpose of addressing the concerns identified by Dr Quadrio.
For the purposes of Order 17 herein a copy of the report of Dr Quadrio dated 13 July 2009 be made available to Ms B.
The mother do all acts and things and give all necessary consents and sign all documents necessary to cause the school attended by [X] to provide to the father copies of [X]’s school reports, school newsletters, information as to forthcoming events and the like.
Each parent be entitled to obtain and be responsible for obtaining from [X]’s school; sporting clubs and other associations with which [X] may become involved from time to time, particulars of [X]’s welfare; progress; school or other reports, details of forthcoming activities and functions provided by [X]’s school; sporting clubs or other such associations.
Each of the parents shall:
(a)Notify the other parent as soon as possible and in any event within 24 hours of any serious injury or illness suffered by [X] while in the care of that parent;
(b)At all times keep the other informed of their residential address and a landline telephone number;
(c)Notify the other parent of the name, address and telephone number of [X]’s treating doctor or doctors and authorise that doctor or doctors in writing to release to the other particulars of any of [X]’s health or treatment at anytime requested by the other parent.
THE COURT FURTHER ORDERS THAT:
If there is to be an application for a stay then such application be filed and served no later than 12 noon on 17 July 2009.
The matter be adjourned to 22 July 2009 at 9am for hearing of any stay application.
The matter be adjourned to 28 January 2010 at 9.30am for mention.
The matter be adjourned to 6 April 2010 at 10am for a three day final hearing.
The parties have liberty to apply on 7 days notice.
IT IS NOTED that publication of this judgment under the pseudonym Nepean & Treloar is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYM 3471 of 2006
| MR NEPEAN |
Applicant
And
| MS TRELOAR |
Respondent
REASONS FOR JUDGMENT
(Ex tempore)
This is a case about [X] who is six years old. [X] lives with her mother in Sydney. The applicant is her father who currently lives in Melbourne but is planning to return to Sydney. This case is about how much time [X] should be spending with her father. There is also another issue about a book that [X]’s father is writing and how its publication in whole or in part might have an effect on [X] and/or her mother. I will come to that in due course.
I record here that I think [X] is actually a very lucky little girl. In her relatively short life she’s travelled extensively and done and seen things that most children three times her age have not. It is very clear that both her parents love her very much, though it is possible that this is expressed in different ways at different times.
[X]’s parents are both highly intelligent and articulate people. They are high achievers in their own way. They are different to each other but each have enormous amounts to contribute towards [X]. I am left in no doubt that they both want the best for her, and for [X] to have all the opportunities that they have had themselves, and indeed, more. The problem is that [X]’s parents are so locked in conflict with each other that they have become blind and can not see what this is doing to her now, and worse still, what it can do to her in future if it continues.
This beautiful, bright, little girl is caught in the crossfire of her parents’ conflict. There is a lot of emotion in this case. And can I say, far more than we typically see, even in this place. And I suspect that the emotion has blinded [X]’s parents from seeing things that I believe are otherwise quite obvious. And let me give you an example of this, that is of what I think is a hopefully temporary blindness that the parents are suffering.
The competing proposals of the parents are set out in the short minutes of orders provided to me by each of their Counsel. I am not sure who Blind Freddy is, but if Blind Freddy were here I am sure that he could see that the parents are actually not far apart in terms of what they want for their daughter.
For example, the father wants contact each alternate weekend and the mother proposes one weekend each calendar month. The father offers a solution to address the mother’s concerns about publication of the book and its excerpts and the mother agrees, except as regards the wording of it. Now I am not minimising the significance of these issues and of the differences between the positions adopted by the parents from their perspective. But what I would like to say is that from a more objective perspective the parents are not far apart, which actually confirms my belief that they both in fact want the best for their daughter.
A lot of time was spent ventilating about issues that I do not consider all that important in the context of an interim hearing. For example, both parties criticised each other at length for changing their position about what they wanted in these proceedings for [X]. Thus, for example, the father pointed out that the mother had recently proposed no contact and yet at the hearing yesterday was offering contact.
The mother pointed out that until yesterday the father would make no concessions in relation to publication but yesterday he was making concessions. For my part, I do not criticise either parent for changing their position at the hearing yesterday. In fact I praise them for doing that. What [X] expects from you and needs you to do is this, preferably, during her lifetime to cooperate and collaborate about parenting. Now if you can not do that then the next best alternative is compromise.
Yesterday you both demonstrated to me and to your daughter that you were capable of compromising about [X]. That is a good start. I just want to say, [X] expects more from you two, preferably cooperation and collaboration as parents. I am not going to criticise either parent who at the interim hearing did what all reasonable parents should do, and that is to compromise, especially after they have had the benefit of input from Dr Quadrio as well as good legal advice. So insofar as there was any criticism about either of the parents changing their position, I simply do not accept it. And I praise the parents for doing what they did yesterday.
A lot of time was spent critically examining Dr Quadrio’s report, for example whether it was prepared using sufficient objective and independent material and whether the weight to be given to it needs to reflect the significant changes in the positions of both parents. There are issues about Dr Quadrio’s report that do need to be explored, but in the context of a final hearing. In the context of an interim hearing what it clearly says is that there are issues to be dealt with in terms of the personalities of both parents. But what is significant is that there is already evidence of willingness by both parents to address those issues in the context of Dr Quadrio’s report.
Dr Quadrio’s observations showed that [X] has a wonderful relationship with her mother and a good relationship with her father. Dr Quadrio’s assessment of [X] is found at pages 27 to 28 of her report. And I incorporate these into my ex tempore reasons. I get the impression that Dr Quadrio, who is not known for being easily impressed about anything, was in fact impressed about this delightful young girl who seems to show no signs, so far, of being affected by being caught in the crossfire of her parents’ conflict.
It is refreshing and encouraging to read an expert’s report in this jurisdiction that presents such a positive picture of a little girl. If you do not believe what I am saying, if you think I am exaggerating, then when we finish this afternoon you ask your representatives about whether it is true. You do not get reports in this jurisdiction that present such a positive picture about your little girl. And that tells me that both of you must be making a positive contribution towards her life despite the intense conflict that exists. There are certainly things that both of you are doing which is very right, from her perspective.
Dr Quadrio’s recommendations are guarded and are in any event contingent on findings of fact that are simply not possible at this particular stage of the proceedings. Her observations, however, about [X] are valid and certainly helpful to me. These observations give me a cautious optimism about how she will cope with spending time with her father. There is no doubt that there is already a history of [X] spending time with her father, including overnight. That is not disputed. But it has not been consistent. And that is one of the things that needs to change.
There is nothing in the evidence that I have seen or heard that raises issues about whether [X] has a meaningful relationship with her father, or whether there were any safety or welfare issues associated with spending time with her father. Despite Mr Batey’s assertions, there is nothing to suggest that the statutory presumption of equal shared parental responsibility has been rebutted or negated.
Indeed, I conclude that on an interim basis it is in [X]’s best interests that the presumption of equal shared parental responsibility apply. And this means that under the Act I must consider equal time, or substantial and significant time if it is reasonably practical and in her best interests. Equal time is not reasonably practicable for the time being, nor would I consider it to be in the best interests of [X]. It would be moving far too quickly for the time being.
It is not at any event at this stage sought at an interim level anyway. And I must say I sense the parents have a lot of work to do before equal time would even be a remote possibility, though I certainly do not close my mind to this as a possibility.
I am required under the legislation to consider substantial and significant time. The father’s proposal is closer to this than the mother’s, both in terms of the frequency, that is each fortnight, and in terms of the opportunities that it provides for him to interact with [X]’s school on Friday afternoon and Monday mornings. The question I ask myself whether it is in her best interests? Based on Dr Quadrio’s report I think it is safe for me to make a number of conclusions as follows.
Firstly, that [X] has expressed no views that would contraindicate frequent contact.
Secondly, that [X] enjoys a warm and friendly relationship with her father and has no anxieties about time with him. I think that this needs more time to develop, both in terms of frequency as well as length.
Thirdly, I can not resolve at an interim level issues about each parent’s willingness and ability to facilitate a relationship with the other. What I can conclude is that such a willingness is not totally absent, as is evidenced by the proposals that each parent makes. And this makes me confident that they will both earnestly try to make work that which I have in mind for [X].
Fourthly, Dr Quadrio has concerns about the likely impact of changes in circumstances on [X]. In short, I think she is saying do not move too quickly and do not introduce too lengthy periods of contact. She emphasised moving forward in a graded fashion. I propose to take this on board in recognition of the needs that both the mother and [X] have in this regard.
Fifthly, there are unresolved issues of parental capacity, some which are quite complex. I hope that the father now understands how at least according to Dr Quadrio, some of his actions have caused significant distress and trauma for the mother. I am confident that he does better understand this because his own proposal attempts to address one of the major stressors for the mother, namely, publication of materials relating to her, and [X].
What is clear about the issue of parental capacity, however, is the absence of complaint that each parent has against the other in terms of day to day ability to look after [X]. Accordingly, at an interim level there are no issues of parental capacity that contraindicate substantial and significant time.
Dr Quadrio found the mother to be responsible and committed to [X] since birth. The father appears to have come to the party, so to speak, in terms of his attitude to [X] and to the responsibilities of parenthood, though he might be described as a late bloomer in this regard. But there is nothing about his attitude towards the responsibilities of parenthood that would indicate that substantial and significant time, at least for an interim basis, is not appropriate.
However, I do ask the father to think about something. One of the criteria for a good parent under the Family Law Act is the ability to demonstrate that a child’s interests are elevated above personal interests. I certainly understand the creative passion that motivates a book. But if at the end of the day that creative work has the potential to actually harm a loved child, is it worth it? This is where a child’s needs must be elevated over that of a parent.
So subject therefore to the need to move forward sensitively, I see no reason not to adopt the father’s proposal for what is in effect substantial and significant time, though not necessarily to the extent that he proposes. We are presently in the mid year school holidays and there seems no reason not to start now. The mother offers the weekend, the father proposes the 15th to the 20th of July.
I propose to start with a block of four days and three nights commencing from 10 am on Thursday, 17 July through to 6 pm on Sunday, 20 July. This contact period should take place in Sydney simply to ease [X] in to a new parenting arrangement and hopefully make it less stressful for her. [X] should be able to contact her mother by telephone frequently when she is with her father, and likewise when she is with her mother.
Commencing from the Friday of week 1 of term 3, and thereafter each alternate weekend, [X] should spend time with her father from after school on Friday to before school on Monday.
During the October school holidays there should be block contact consisting of four days and three nights starting from 10 am on day 1 to 6 pm on day 4. If the parents can not agree as to when this starts then it should start on the Friday of the first week of the school holidays.
During the December/January school holidays there should be two block contact periods consisting of five days and four nights. If the parents can not agree when this starts then it should be the Thursday of the second and the fifth weeks of the said school holidays.
Unless the parents otherwise agree, [X] will also spend time with her father on Father’s Day between 10 and 6, if it is not already a contact weekend, and from 3 pm Christmas Day to 6 pm on Boxing Day. I emphasise to the parents that at any time, provided they both agree, they can change these arrangements.
It is clear to me, and I think it is obvious from Dr Quadrio’s report, that the parents need to work on their communication skills so I am going to order that they both undertake a post separating parenting assessment and I have chosen Relationships Australia simply because I know that they have a reputation for excellence in these courses, and also that they are available in both Melbourne and Sydney, depending on where the father will in fact move. The mother has proposed that she attend on Ms B and that a copy of the report be provided to her, and I agree that that is an appropriate order to make under the circumstances.
There was an issue about whether I should set this matter down for hearing or simply adjourn it to see how it works. Due to delays in this registry I am going to set it down for a hearing for up to three days commencing on 6 April 2010. It is a little bit later than what I thought it would be yesterday.
Having said that, I want to actually express my confidence to the parents that I do not think you are actually going to need a final hearing because you will be able to sort this out yourselves. Nonetheless, if you can not there will be a final hearing. I am going to re‑list this matter back before me on 28 January at 9.30 to make directions for trial and also if necessary to get an updated report. I am going to give leave to re-list on seven days’ notice generally.
Publication
Let me turn to the publication issue. In relation to what I have described as the publication issue, again the parents are really not that far apart. The mother seeks, and the father offers, restraints on publication in various forms and through various media of material relating to the mother and [X]. It was taken as a given that the Court has power to put in place such restraints, but I flag that at a final hearing the precise limits of this in a legal sense may need to be explored. For present purposes suffice it to say that the Court has power either under section 68B or section 114 to make orders in terms of that sought by either parent.
What received little attention in the submissions was the rationale for making these orders, probably because it was so obvious. I think it is worth articulating the reason for imposing restraints. Firstly, it clearly upsets the mother and therefore indirectly, if not directly, has the potential to affect [X] and Dr Quadrio’s report provides ample evidence of the upsetting effect on the mother of this issue.
Secondly, however, there is the issue of how publication might affect [X] either now or at some time in the future. And again I ask the father to consider how [X] would feel if one day she reads some of the things that the father has written. It need not refer specifically to the mother or [X] and yet it still might cause her upset and ironically even adversely affect [X]’s own relationship with her father. Is it really worthwhile running this risk? The publication may come to [X]’s attention through other parties, her friends, parents of her friends. I regard the risk here as a real one, not a theoretical one.
The differences in the orders sought are not semantic or academic. The father’s proposal is more limited, he offers to remove references to [X] and the mother from the Internet and not to publish the manuscript. I record here that the father is making a significant concession in offering not to publish the manuscript.
He also offers not to contravene section 121 of the Act, which is significant because if he does he exposes himself not just to the possible public remedies available to the Attorney‑General under section 121 but also to private accountability via contempt and contravention proceedings. This clearly signals to me that he is serious about what he is offering here.
Notwithstanding this, I prefer the orders proposed by the mother because it more comprehensively covers some of the issues raised in the evidence. It requires the father to try to influence third parties to do things, or not do things, as the case may be and the clearest example of this is in relation to his former partner. It goes beyond deletion of references to the mother and [X] to include any information that might identify the child or the mother, for example through pseudonyms.
It covers [B] and in this regard the father withdraws his subpoenaed [B]. And I interpose, I think this is appropriate and I had tentatively formed the view that it was irrelevant to the interim issues. In any event events overtook this issue and the father has withdrawn that subpoena.
I think however that there are some issues that do need to be considered at a final hearing if necessary. There must be a limit to the Court’s power to restrain publication on a final basis. There are issues about freedom of expression and what is a reasonable constraint on the same that may need to be explored. Suffice it to say that as, firstly, the father fundamentally concedes the need for an order, and secondly, the restraint is for a limited time only, I have no doubt that the orders are appropriate and in [X]’s best interests.
Accordingly I propose to make orders to the following effect.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Anthony Thompson
Date: 16 July 2009
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