Norbert & Murr
[2008] FamCA 271
•18 February 2008
FAMILY COURT OF AUSTRALIA
| NORBERT & MURR | [2008] FamCA 271 |
| FAMILY LAW - CHILDREN - parenting orders - Magellan - limitations on shared parental responsibility. |
| Family Law Act 1975 (Cth) s 60CC(1), 61DA, 65DAA(1) and (2) |
| HUSBAND: | Mr Norbert |
| WIFE: | Ms Murr |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLF | 1773 | of | 2005 |
| DATE DELIVERED: | 18 February 2008 |
| PLACE DELIVERED: | Melbourne |
| JUDGMENT OF: | Brown J |
| HEARING DATE: | 18 February, 2008 |
REPRESENTATION
| COUNSEL FOR THE HUSBAND: | Ms A.B. Goldsworthy |
| SOLICITOR FOR THE HUSBAND: | Victoria Legal Aid |
| THE WIFE: | In person |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL: | Mr R.N. Hoult |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | Bowlen Dunstan & Associates |
Orders
IT IS ORDERED BY CONSENT(but subject to the notation to this order) :
That all previous parenting orders in relation to the child of the marriage … (“the child”) born … September, 2001 be discharged.
That the child live with the husband.
That the child spend time and communicate with the wife as follows :
(a)During school terms, on each alternate weekend, from 6:00 pm. Friday until 6:00 pm. Sunday or, in the event that the Friday or Monday is a non-school day, from (respectively) 6:00 pm. Thursday until 6:00 pm. Sunday or 6:00 pm. Friday until 6:00 pm. Monday.
(b)If, during school terms, there is a non-school day on a Tuesday, Wednesday or Thursday, then on each second such non-school day, from 10:00 am. to 6:00 pm. PROVIDED THAT a non-school day which falls on the first gazetted day of a school term shall not be considered a non-school day for the purpose of this order.
(c)For one week during each school term vacation at times to be agreed, and failing agreement the first half in odd numbered years and the second half in even numbered years, from 12:00 noon on the first or middle Saturday until 12:00 noon on the middle or final Saturday.
(d)For eighteen (18) days in the long summer school vacation at times to be agreed, and failing agreement from 12:00 noon on 1 January to 12:00 noon on 18 January.
(e)From 12:00 noon on Christmas Day until 12:00 noon on Boxing Day.
(f)If Mothers’ Day falls on a weekend when the child would not otherwise be with the wife, from 10:00 am. to 4:00 pm. on Mothers’ Day.
(g)By telephone on each Wednesday, the child to telephone the wife between 6:00 pm. and 7:00 pm., and the husband to do all things reasonably necessary to facilitate and encourage the child to telephone the wife at that time, and at such other times as the child wishes.
(h)In the event the child’s birthday falls within a school term :
(i)if the birthday falls on a week day when she would not otherwise spend time with the wife, for two hours at times to be agreed and failing agreement, from 5:00 pm. until 7:00 pm.; and
(ii)if the birthday falls on a weekend when she would not otherwise spend time with the wife, for three hours at times to be agreed and failing agreement, from 1:00 pm. to 4:00 pm.
(i)At such other times as agreed between the parties.
That the wife be and is hereby restrained from :
(a)discussing with the child or within her hearing, issues relating to allegations that the husband has sexually abused her or allowing a third party to engage in such conduct;
(b)questioning the child as to issues relating to sexual abuse or allowing a third party to engage in such conduct;
(c)discussing these proceedings with the child or within her hearing or allowing a third party to engage in such conduct; and
(d)taking the child to a health professional other than for issues of urgent sickness or injury and in that event, the wife notify the husband of such sickness or injury as soon as is practicable.
That the husband and wife be and are hereby restrained from denigrating the other in the presence or hearing of the child and from allowing a third party to engage in such conduct.
That for the purpose of changeovers, and subject to paragraph (7) hereof, the child be delivered to and collected from the B Police Station save for times spent pursuant to paragraphs (3)(b) and (h) hereof, for which changeovers shall take place at the N Railway Station.
That in the event a party relocates from his or her current address, the changeover point at the commencement of time with the mother shall be at the railway station closest to the husband’s residence (or, in default, the nearest police station) and the changeover point at the end of a period of time with the mother shall be at the railway station closest to the wife’s residence, or in default the nearest police station.
That if the child’s birthday falls during a school term and on a day on which she would not otherwise live with the husband pursuant to these orders, then the child shall be returned to the father :
(a)at 3:00 pm. on Sunday, in lieu of 6:00 pm., if the birthday falls on a weekend; or
(b)at 3:00 pm. on her birthday, if the birthday falls on a non-school day on which she spends time with the wife pursuant to these orders.
That if Fathers’ Day falls on a day on which the child would not otherwise live with the father pursuant to these orders, then the child shall be returned to the father at 10:00 am. on Fathers’ Day, in lieu of 6:00 pm.
That each of the parties keep the other advised of a telephone number (landline or mobile) at which he or she can be contacted in an emergency when the child is with the other parent.
That the parties have equal shared parental responsibility for the child save that the husband have sole responsibility for decisions relating to :
(a)the child’s education; and
(b)the child’s health
PROVIDED THAT :
(c)the husband keep the wife informed of any change of the child’s school, and such advice be given no later than seven days prior to a proposed change of school; and
(d)the husband advise the wife as soon as practicable of any serious injury or illness experienced by the child.
That the independent children’s lawyer be discharged.
That all extant applications be otherwise dismissed.
That these applications be removed from the List of matters awaiting finalisation.
That the reasons for judgment this day be transcribed and copies be made available to the parties.
That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.
AND THE COURT NOTES
That the following aspects of these orders were not made by consent but are the result of judicial determination :
(a)The times at which the wife’s time with the child commences and concludes on weekends. (paragraph (3)(a))
(b)The time the child is to spend with each of her parents on her birthday. (paragraphs (3)(h) and (8))
(c)The time the child is to spend with the wife on non-school days (other than a Monday or Friday). (paragraph (4)(b))
(d)The number of days the child is to spend with the wife in the long summer school vacation. (paragraph (4)(d))
(e)Whether there should be an order for telephone communication at a particular time or a more general order. (paragraph (4)(g))
(f)The changeover point, save for changeovers on non-school days which fall on a Tuesday, Wednesday or Thursday. (paragraph (6))
(g)The provisions relating to equal shared parental responsibility. (paragraph (11))
IT IS NOTED that publication of this judgment under the pseudonym Norbert & Murr is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLF 1773 of 2005
| MR NORBERT |
Husband
And
| MS MURR |
Wife
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
The parties married in April 2003 and separated in November 2004. They have a daughter, born in September 2001.
The mother
The mother lives in B. She has two older daughters; T about 19 and M is 10. M’s father, Mr S, now shares M’s residence with the mother, after litigation between them resolved. It is clear from the evidence before me that Mr S has been playing a role in facilitating changeovers for the parties’ child, to assist the mother.
The father
The father has three adult children. E, was 22 when Ms W saw her and may have turned 23, lives with him. For reasons that are referred to by him, and in other evidence, he has no contact with his two other adult children.
The child
The child is at C School, where she is undertaking the OA program there. That is a program about which the court has heard a deal of evidence in other cases. It’s approach is to create conditions for learning that are likely to enhance and facilitate children's powers of thinking and thought. It places emphasis on expressive, communicative and cognitive languages. There is an emphasis on a curriculum that builds on a child's interest, encourages curiosity and involves collaborative and integrated approaches, often utilising the graphic arts.
Ms W, whose reports I will refer to briefly, noted that when she last saw the child, the child was having some difficulty relating to her peers. Her behaviour at times was inappropriate. There was a sense she was not performing academically to her intellectual capacities, and she had been assessed by a school psychologist. It seems that these issues are now addressed at C School.
EVIDENCE
I am referring to the parties as the mother and father. It is a very long time since they were married and in my view it is perhaps easier to deal with it in that way. The mother relies on affidavits filed on 27 May and 16 September 2005, and a lengthy affidavit, prepared for the mother by Women's Legal Service, filed on 13 February, 2008. The father relies on an affidavit filed by him on 4 February, 2008.
I have read the report of Ms B, the psychosexual assessment annexed to the mother's affidavit, the reports of Dr O, which were provided to me this morning, Dr. K’s reports and a number of reports by Ms. W.
I note there had been a proposal to call a teacher and the junior principal from C School but, as events transpired, that did not occur. Similarly, witnesses the mother had proposed calling Dr H (her GP of many years), Ms F (a counsellor) and Mr S (M’s father) were not called.
The court also has before it a report from the Department of Human Services, provided on 7 February 2008. DHS advised, in a brief report, that allegations made about the father had been investigated and not substantiated. DHS advised they had “no view about access arrangements for [the child] with her mother”, and did not intend to intervene in the proceedings.
LEGAL PRINCIPLES
The provisions in the Family Law Act 1975 relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
LITIGATION HISTORY
I do not propose to summarise all the orders that have been made in the proceedings, which commenced in 2005. Suffice to say that each parent sought that the child live with him and her. The mother alleged the child was at risk of being sexually abused by her father; he alleged the mother was unstable and drug affected.
On 4 May, 2006, by consent, Senior Registrar FitzGibbon varied earlier orders to provide for the mother to have contact (as it was then called) on alternative weekends, from 10 am. Saturday to 6 pm. Sunday, and for a number of days over the school holidays, although not overnight.
On 12 October, 2007 I made orders providing for the child to spend two weeks with the mother during the long summer school holiday period. Orders were made requiring the father to initiate telephone communication between the mother and the child on each Tuesday and Thursday. Dr. K was to prepare an updated report.
The case commenced this morning and, after some time, was stood down for some discussions. Much to the parties’ credit, they agreed on a framework within which to continue to parent their daughter.
As it is not uncommon, the parties have struggled to agree on the fine detail of the arrangements. They have agreed that the court should determine these aspects, acting on the evidence before the court and submissions of the parties. The mother has been ably assisted by Ms. L, from Women’s Domestic Violence Crisis Service.
The parties have agreed that the child will live with the father, and spend time and communicate with the mother on each alternate weekend. There is a dispute about the starting and finishing times, which I will determine today. They have also agreed that if the Friday or Monday adjacent to that alternate weekend is a non-school day (for example, a long weekend or a curriculum-free day) that the time the child spends with the mother will extend to include that day. There is dispute as to whether it should extend to non-school days which fall on a Tuesday, Wednesday or Thursday; that is, days not adjacent to a weekend.
The parties have agreed that the child will spend a week in each school term holidays with her mother and on a formula to effect that. There is a dispute as to whether the child should spend 14 days or 18 days with her mother over the long summer holidays.
In relation to telephone calls, there is a dispute as to whether there should be one fixed phone call in each week, at a set time, or whether there should simply be an order that Phoenix be at liberty to telephone her mother whenever she wants.
There is also a dispute about changeovers about the time, if any, the child should spend with the mother on the mother's birthday and on the child’s birthday, if those birthdays do not fall on a day on which the mother would otherwise see her. Part way through the submissions it emerged that there was also a dispute about aspects of parental responsibility.
Alternate weekends
This could be at the heart of the orders. As research shows, the most important building blocks for children are predictability, consistency and stability. A clear pattern of regular time with both parents is likely to minimise the anxiety experienced by the child in the past, and to foster her best interests. The alternate weekend contact creates a framework of which the child can be certain; she can know that she is to spend time with her mother, and measure the period between visits.
The independent children's lawyer supports a starting time of at 6:00 pm. on a Friday, concluding at 6:00 pm. on a Sunday. That is also sought by the mother. The father would prefer a 6:00 pm. start and finish during daylight saving periods, but a 5:00 pm. start and finish at other times. It has been put that he has a cataract condition and often utilises public transport, as does the mother. Further, it was submitted that in the winter it can be dark and cold at 6:00 pm. and it would be better if contact started earlier, and finished earlier, limiting the child’s exposure to the weather.
I do not underestimate the difficulties parents have in arranging changeovers and moving children between homes. These are exacerbated when communication is not easy. But in my judgment, there is force in the ICL’s submission and time should start and finish at 6:00 pm. Melbourne is not London. It is not dark at 4:00 pm. in the afternoon and, in any event the child’s bedtime will be sometime after 6:00 pm.
Non-school days
I move to the question of non-school days, report writing and curriculum days, that fall on a Tuesday, Wednesday and Thursday. I have no evidence from C School about this; nor is it covered in any of the material. It is put that there may be a few such days in each year. If there are, in my view it is reasonable for them to be shared. A holiday mid-week (which is how a child will see it) can give a parent time to do things not available at a weekend. A day off will be looked forward to by the child and she can spend each second one with her mother.
The order I make will exclude the first day of the school year. In my experience, the first gazetted day of the school year is a curriculum day, on which children do not attend school. Parents may not even know the day is gazetted, simply being told school starts on the Tuesday or another day of the week. Changeovers on these days will be at N.
Summer holiday period
I move to the question of the school holidays. The father’s position is that the order I made late last year was for the child to spend two weeks with her mother, and that it is important the child is able to spend time with him during this period. The Family Law Act 1975 lays emphasis on the importance of children spending time with extended family, whether siblings or any family members. The child can spend a lot of time with E when she is at her father’s home. M will be at the mother’s home on weekends when the child visits, and T will be there too. But they are not extended periods of time. Again, there is force in the ICL’s submission and I find 18 days is likely to be in the child’s best interests.
Telephone calls
I am well aware of the problem faced by adults who want to talk with children on the phone. Young children sometimes want to talk, but often they do not. That has little to do with whether they love the person on the other end of the phone. Young children are easily distracted. They forget that there is a person at the end of the line, and say, "Hello," and run away. The process can be very difficult for the parent charged with the duty to make the call, and very frustrating for the parent who is waiting for the call. Under the earlier orders there was provision for two calls a week. Counsel for the father has referred to problems with this arrangement and there is mention in the evidence of the child not wanting to speak with her mother and that giving rise to problems between the parents.
Ms L, who spoke very well, and in a tightly focused way, for the mother has conceded that the arrangement for two calls a week has been troublesome. The parents have different solutions. The father's solution is to cut out the specific times and allow the child to ring whenever she wants. The mother's solution is to make provision for one phone call a week. It will be in the child’s best interests to provide for one specific call in each week. That will be suspended during school holiday periods. A parent needs to be able to take a child away without worrying about whether there is a readily accessible phone or an adequate mobile network. Orders will provide for a call to be made on each Wednesday, during the school term, between 6:00 and 7:00 pm. I make it clear that I do not envisage a call of an hour’s duration. Only an heroic child of this child’s age could talk for an hour. She may only talk for three minutes on occasion. Her mother must be realistic about this.
Information about each parent
The mother was keen to have the father's address. It was put that he has moved. When Ms W last saw the family, he lived in R and I can assume he is still living somewhere near the N Station, as that is to be one of the changeover points. I am mindful of the long years of unhappiness in this case and I do not propose to require the father to keep the mother informed of his address, any more than I propose to require the mother to keep the father informed of her address. The orders to be made by consent contain a provision for changing the changeover point if a party moves. That may require general advice of a move but not the provision of a specific residential address.
I will order that each of the parties keep the other advised of a mobile phone number at which he or she can be contacted in an emergency. It is important the father’s phone is on when the child is with the mother and that her phone is on when the child is with the father.
Birthdays
Families have different ideas about the importance of birthdays and birthday celebrations. The child was born in September, a date which may sometimes fall within school holidays. If the birthday does fall within a school holiday period there will be no provision for the parent with whom the child is not then living to have contact with her. If the child’s birthday falls during the school term, orders will ensure she sees both parents on her birthday.
I do not propose to make an order for the child to spend time with a parent on that parent’s birthday, regardless of where she is living. The child will be seeing both parents regularly; each can celebrate his or her birthday in close proximity to the specific date. Changeovers are often the most stressful time for children, as the move between two parents they love, but who, they know, do not get on well.
Parental responsibility
The parents will have equal shared parental responsibility, save that decisions about the child’s education and health will be in the hands of the father. He will be required to keep the mother informed. This is a pragmatic solution, focussing on the child’s best interests. Insofar as a general order for equal shared parental responsibility requires consideration of equal time, I am satisfied the orders the parties seek are more likely to advance the child’s best interests.
Changeovers
The bulk of changeovers have been at the B Police Station for quite some time. Each of the parents has advanced reasons for their preference. The father would prefer to deliver the child to N Station, and have the mother pick her up there. On her return, he suggests the child be delivered by the mother to B Police Station, and collected by him from that location. This would result in a more equitable sharing of travelling.
Mr. S has been providing some assistance with changeovers to the mother. The mother prefers the police station, because she has difficulties with transport but also because it provides a measure of security. That may also have benefits for the father, too, protecting him from allegations. In those circumstances, I propose to make it the B Police Station.
Orders
The court will take these orders out. The orders will make clear which paragraphs have been made by consent and which are the result of judicial determination.
I certify that the preceding
38 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.
Dated the day of 2008.
…………………………………………
Associate.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Injunction
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Procedural Fairness
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