NICHOLAS & PARRA
[2020] FCCA 3366
•10 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NICHOLAS & PARRA | [2020] FCCA 3366 |
| Catchwords: FAMILY LAW – Parenting – interim hearing. |
| Legislation: Family Law Act 1975 (Cth) |
| Applicant: | MR NICHOLAS |
| Respondent: | MS PARRA |
| File Number: | DUC 154 of 2020 |
| Judgment of: | Judge Dunkley |
| Hearing date: | 2 November 2020 |
| Date of Last Submission: | 2 November 2020 |
| Delivered at: | Dubbo |
| Delivered on: | 10 December 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Ms K. Hardie of Kelly Hardie Solicitors |
| The Respondent appeared in person |
ORDERS
PENDING FURTHER ORDER
The parties shall have equal shared parental responsibility for X born 2015.
X shall live with her mother.
X shall spend time with her father as follows:
Until 26 January 2021
(a)Each alternate weekend from 5pm Friday to 5pm Sunday starting 18 December 2020.
(b)Each alternate week from 5pm Wednesday to 8am Thursday starting 23 December 2020
From 27 January 2021
(c)During school term time, each alternate weekend from 5pm Friday to 5pm Sunday starting the first weekend of each school term.
(d)During school term time, each alternate week from 5pm Wednesday to 8am Thursday, starting the second Wednesday of each school term.
(e)For the first week of the Term 1, 2 and 3 school holidays from 9am on the first Saturday to 5pm on the middle Saturday.
(f)For half of the Term 4 school holidays, being the second half in 2021/2022 and each alternate year thereafter and the first half in 2022/2023 and each alternate year thereafter.
(g)On Father’s Day from 9am to 5pm.
(h)At such other times as the parents agree.
If a time with period in order 3 hereof coincides with the Mother’s Day weekend the period provided for shall be suspended on Mother’s Day from 9am to 5pm.
(a) The father is to be solely responsible for collecting X on his own from the mother’s home at the beginning of each period.
(b)The mother shall pick up X at the end of each period from the father’s home.
Neither party shall denigrate the other party or a member of that party’s family or household in the presence or hearing of X nor permit X to remain in the presence or hearing of any person who engages in such denigrative behaviour.
The father shall not allow X to be in the presence of a member of the paternal family (not including Ms A) unless the father is simultaneously present.
THE COURT FURTHER ORDERS
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report.
The Family Report to deal with the following matters:
(a)Any views expressed by the child the subject of parenting orders sought in this case, provided that the child shall not be required to express a view in relation to any matter.
(b)The nature of the relationships of the child with each of the child’s parents and with significant other persons.
(c)The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.
(d)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of the parents: or
(ii)any other child, or significant person, with whom the child has been living.
(e)The practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
(f)The capacity of each parent, or another person, to provide for the needs of the child, including emotional and intellectual needs.
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) other children and of either of the child’s parents and any other characteristics of the child that the reporter thinks are relevant.
(h)Each parent’s attitude to the child and to the responsibilities of parenthood.
(i)Any family violence involving the child or a member of the child’s family.
(j)Such other issues as the Family Consultant considers relevant.
The Family Consultant is requested to complete the report not less than 4 weeks before the directions hearing.
The parties shall attend all appointments with the Family Consultant and shall ensure the subject child attend all appointments with the Family Consultant, as requested by the Family Consultant.
The Family Consultant may inspect the Court file and any documents produced on subpoena to which no objection has been lodged.
Upon the report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child to whom these proceedings relate:
(a)A Children’s Court;
(b)A child protection authority;
(c)A State or Territory Legal Aid Authority; and
(d)A convener of any legal dispute resolution conference.
Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
This case is listed for further directions on a date to be advised consequent on the release of the family report.
IT IS NOTED that publication of this judgment under the pseudonym Nicholas & Parra is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DUBBO |
DUC 154 of 2020
| MR NICHOLAS |
Applicant
And
| MS PARRA |
Respondent
REASONS FOR JUDGMENT
Mr Nicholas (the father) and Ms Parra (the mother) are the parents of X, aged 5, who was born 2015.
The parents had a short relationship, living together from early in 2015 until 24 December 2016.
Since separation X has lived with her mother and spent limited and what the father describes as “sporadic time with him”.
Proceedings
On 17 April 2020 the father filed an Initiating Application.
He relies on:
·his affidavit sworn 17 April 2020
·affidavit of Ms B sworn 26 October 2020
·affidavit of Ms A sworn 26 October 2020
·affidavit of Ms C sworn 23 October 2020
He seeks interim orders in the terms of a minute of order contained in his solicitors case outline in summary as follows:
·equal shared parental responsibility
·that X live with her mother
·that X spend time with her father
- each alternate weekend 5pm Friday to 5pm Sunday
- each Wednesday 5pm to 7pm
- on X’s birthday for 4 hours
- on Father’s Day
- 10am 27 December 2020 to 5pm 29 December 2020
- 10am 3 January 2021 to 5pm 10 January 2021
·From 27 January 2021
- during school terms from after school Friday to before school Monday
- each Wednesday 3pm to 7pm
- half school holidays
·ancillary orders
The mother filed a Response on 24 July 2020 and a Response on 26 October 2020.
The interim orders sought in each Response are very similar she seeks in summary pending further order:
·sole parental responsibility
·restraining orders about vaccinations for X
·an order restraining Ms A attending any of X’s medical appointments
·that X not be in the presence of Mr D, Mr E and Mr F unless the time is supervised by a person agreed between the father and mother
·that X not be in the presence of Ms B
·that X live with her mother
·that X spend time with her father
- 9am to 3pm on Saturday
- 4pm to 7pm on Wednesday
- on X’s birthday for 2 hours
- on Father’s Day from 9am to 3pm
·she then proposes an increase in the time X spends with her father starting 27 January 2021
·ancillary orders
The mother relies on her two affidavits, the first sworn on 24 July 2020 and the second filed on 25 October 2020.
Chronology
The following chronology is taken from the above documents and provides context for this judgment.
1989
Father born
1990
Mother born
January 2015
Parents start to live together
2015
X born
24 December 2016
Parents separate. X remains living with her mother
July 2017
Father starts living with Ms A
17 April 2020
Father files Initiating Application
24 July 2020
Mother files Response
2 November 2020
Interim hearing
- orders made relevant to registration of X’s birth
- pending further order X only to be vaccinated with the joint consent of both parties
- X to be transported in a car seat that complies with the relevant Australian standard
- Judgment reserved
Evidence
The father lives in Dubbo and is in full time employment.
The mother lives in Dubbo and runs a business full time.
The father is not overly critical of the mother’s parenting capacity.
The father says there is no risk arising for X in living with her mother.
Where the father is critical of the mother, it relates to her reluctance to vaccinate X and the perception he has that the mother acts as an unnecessary gatekeeper of his time with X.
Each party says “there was no violence in our relationship, however we did argue at times”.
The father says he wants to be actively involved in X’s life.
The mother does not agree and says “he has never been an overly active father especially when it comes to parenting duties”.
The father perceives the mother reduced his time with X when his relationship with Ms A started.
The mother perceives the father became less interested in spending time with X when his new relationship started and stopped visiting X on a daily basis and then only spent time with her each alternate weekend.
The mother says in paragraph 19 of her affidavit:
I also explained to Ms A that I believed it was important for X to continue spending time with both parents together, and be able to have the occasional family dinner as well as celebrate birthdays etc with both her parents present.
In paragraphs 22 and 23 of her affidavit the mother wrote:
I am confident (after seeing X’s room and space), that X is safe while in Mr Nicholas’s care, provided she is not exposed to his family
and
I do not feel comfortable with her [X] being left alone in Ms A’s care if Mr Nicholas is not present.
The mother asserts “Ms A continually tries to place herself in my role, and undermines my parenting decisions”.
The parents agree immediately post their separation the father spent time with X every second weekend (initially not overnight) and on most afternoons each week, and within a few months was spending time with X from Friday afternoon to Sunday night.
The parents agree there were several months in mid 2017 when the father spent no time with X because the mother wanted to inspect where the father was living with his new partner and the father was initially reluctant to allow such inspection.
In February 2019 the mother alleges the father took X to visit his family having promised he would not.
She is also critical that around this time the father refused offers of extra time with X.
In mid 2019 the mother became distressed when X returned from a weekend with her father and said to her “you’re just a fat fucking whale”.
On questioning X about who had said that to her, she says X replied “[Mr E]”.
The mother says [Mr E] is Mr E, the father’s brother.
The mother says she suspended time between X and her father because “I really needed to take some time for my own mental health.
Once time recommenced, the mother says the father elected to spend only a few hours during day time periods with X and then single overnight periods.
By May 2020 the mother says X was refusing sleep overs with her father and the periods again reduced to day time periods only each Saturday.
The mother records a history of verbal conflict with various members of the paternal family.
X is being home schooled.
She was registered with the appropriate NSW Government Department for home schooling.
Determination
X’s primary relationship is with her mother.
X has an important relationship with her father and is well acquainted with the father’s partner Ms A.
X is a young female child of school age who likely has a sensitive and slightly anxious personality.
Both parents want X to have a meaningful relationship with her father but the mother has been overly and likely unnecessarily protective at times of X in response to X’s sensitive personality.
X has spent regular overnight time with her father and is used to doing so. Her recent reluctance about sleepovers is as likely to be a response to her mother’s anxiety as to any other cause.
There may be a small degree of co‑dependency between X and her mother, whereby if X displays anxiety her mother responds to it and the cycle becomes self‑perpetuating.
A family report will be ordered to provide some expert opinion about the possibility of the above dynamic, and also the nature of X’s personality and issues relevant to her development and relationships.
There is no reason advanced on the evidence to necessitate for protective reasons that X’s time with her father be limited to day time periods.
X has past experience with overnight periods with her father and such periods can resume immediately as they are in X’s best interest so as to give certainty and regularity of experience for X and enable a more meaningful relationship with her father than is possible with limited day periods proposed by the mother.
The overnight periods on an alternate weekend are developmentally and age consistent for X notwithstanding her sensitive personality. An additional overnight period mid‑week on an alternate week basis will enable some school night interaction, even though home schooling is occurring.
There is no evidence that necessitates any restraints being put in place regarding Ms A’s engagement with X, and no need for the father to be constantly present.
X is not to be alone in the company of the paternal family and the father is always to be present to ensure no denigration or negative comments about the mother is made by paternal relatives.
No issue of reasonable practicability arises from the above.
An order for equal shared parental responsibility will be protective for X, as such order is requiring joint decision making by parents about long term parenting issues. The mother has a history of excluding the father from this process without reason that is beneficial for X.
An equal time order is not in X’s best interest, as to date she has had no experience of such parenting and it might be taxing for a child of sensitive personality. Additionally it is not an order sought by either parent.
Significant and substantial time as referred to earlier, is in X’s best interest. Longer school holiday periods can start at the end of Term 1 2021, to enable a period for X to settle into the new parenting regime.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Dunkley
Associate:
Date: 10 December 2020
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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Natural Justice
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