Oberon and Barstow
[2012] FMCAfam 859
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| OBERON & BARSTOW | [2012] FMCAfam 859 |
| FAMILY LAW – Parenting – best interests of the children – amount of time to spend with the father – dispute over collection times. |
| Family Law Act 1975, ss.60B(1), 60CA, 60CC(2), 60CC(3), 60CC(4), 60CC(4A) and 65DAA |
| MRR v GR [2010] HCA 4 Oberon & Barstow [2012] FMCAfam 340 |
| Applicant: | MR OBERON |
| Respondent: | MS BARSTOW |
| File Number: | BRC 563 of 2007 |
| Judgment of: | Pascoe CFM |
| Hearing date: | 6 July 2012 |
| Date of Last Submission: | 6 July 2012 |
| Delivered at: | Sydney |
| Delivered on: | 23 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Othen |
| Solicitors for the Applicant: | Mullane & Lindsay |
| Counsel for the Respondent: | Self-represented |
| Solicitors for the Respondent: | Self-represented |
ORDERS
The Orders made on 1 June 2012 on an interim basis now be made on a final basis with the following modifications.
Where there is week-end contact the father may collect X from the Mother’s residence on Friday at any time from the conclusion of school until 7pm and proceed directly to (omitted). On all other occasions including school holiday time, whilst the father is in Perth and (omitted), X is to be collected and returned to the mother’s home.
In the event that the father is delayed a nominated member of the father’s family may, with the consent of the Mother (which shall not be unreasonably withheld), collect X from the mother’s home on the father’s behalf prior to 7pm.
In the event that X cannot be collected prior to 7pm on the Friday night and proceed directly to the father’s residence in (omitted), she will remain with the Mother until the next morning when she can be collected by after 9am.
The Interim Orders made on 1 June 2012 continue in force except where there is inconsistency with these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Oberon & Barstow is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
BRC 563 of 2007
| MR OBERON |
Applicant
And
| MS BARSTOW |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting matter concerning X, born (omitted) 2003 (“the Child”), who is the sole child of the applicant father and respondent mother.
The current dispute was the subject of a two day hearing on 7-8 August 2012 with judgment for the matter listed for 1 June 2012. However, on that date Counsel for the father advised that the father had accepted a job which required him to travel to Perth in the first instance and then later to (omitted).
The change in the Applicant’s circumstances raised further questions, requiring determination, in relation to parenting arrangements.
Therefore, instead of making Final Orders on 1 June 2012, Orders were made on an interim basis and the matter was listed for a further hearing on 6 July 2012.
This judgment relates to the subsequent hearing and details the reasoning for the Final Orders. The hearing in this matter proceeded on the basis that the parties agreed that the previous Orders were workable with some changes to take account of the Applicant’s change in circumstances. This judgment should be read in conjunction with the previous judgment dated 1 June 2012 (“the Interim Judgment”).
Background
The background for this matter is set out in the Interim Judgment and it is unnecessary to canvas those facts again. The most significant change is the father’s acceptance of employment in (omitted) and Perth. I note that the Interim Orders made on 1 June 2012 were in large part accepted by the parties as appropriate final orders.
Those issues which were the subject of dispute are as follows:
a)Whether alternative weekend time with the father should commence on a Friday evening or Saturday morning;
b)The procedure that should be followed in the event that the father is substantially delayed in collecting X on the appointed day;
c)Whether the father should be allowed to nominate a family member to collect X in the event of delay;
d)Whether X should proceed directly to (omitted) after being collected or if the father is delayed to wait at Sydney airport until the father’s relatives or father arrives and then go to (omitted) from the airport with the father or his relatives.
Legal Principles
The orders I am asked to make in regards to the above matters are parenting orders and as such the Court must follow the defined legislative pathway being always aware of the overarching objects and underlying principles of the legislation.
The legal principles which govern this case are set out in Part VII of the Family Law Act 1975 (the Act). Section 60B(1) enumerates the objects of this part as ensuring the best interest of children are met by:
a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of X; and
b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Most importantly, s 60CA of the Act provides that the court must regard the best interests of X as the paramount consideration in deciding whether to make a particular parenting order.
The primary considerations are firstly the benefit to X of having a meaningful relationship with both parents; and secondly, the need to protect X from physical or psychological harm; from being subjected to, or exposed to, abuse, neglect or family violence.
In determining the best interests of X, the Court must consider these primary considerations, which are set out in s 60CC(2) together with those matters (‘additional considerations’) set out in s 60CC(3). Also of relevance are ss 60CC(4) and (4A) of the Act, which I have considered whilst addressing the matters set out in s 60CC(3).
When considering whether equal time or substantial and significant time is in the best interests of X, the Court must consider and make findings as to whether such time is reasonably practicable (see ss 65DAA(1) and (2) and MRR v GR [2010] HCA 4).
Application of the law to the facts
Parental responsibility
The father and mother, as per Order 2 of the Consent Orders, “are to have equal shared parental responsibility for the major long term issues in relation to X.”
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents.
As I noted in Oberon & Barstow [2012] FMCAfam 340 at [24], the Family Report in this matter, authored by Ms M on 29 February 2012, summarises X’s relationship with her parents as follows:
“[The child] spoke very positively about her mother and said that her mother cares for her and that she feels very good when her mother hugs her. She added “Sometimes we get into arguments”. [The child] also spoke about her father in a positive way and indicated that she enjoys being with him.”
Given X’s close relationship with both parents it is clearly beneficial to X to continue to have a meaningful relationship with her parents. On the evidence, she also has a good relationship with both her maternal and paternal grandparents. The orders I have made, allowing the father to collect the daughter on a Friday night, along with the previous orders reached by consent, will best enable X to continue these relationships. They are therefore in X’s best interests.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There was no evidence placed before the Court in the subsequent hearing which would require any departure from my previous finding that X is not at an unacceptable risk of harm.
Additional considerations:
The reasoning relating to the additional considerations required under s.60CC is fully elaborated in the Interim Judgment and I do not propose to repeat those reasons.
Section 65DAA Considerations
In MRR v GR [2010] HCA 4 the High Court said:
8.Sub-section (1) of s 65DAA is headed “Equal time” and provides:
“If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”
Sub-section (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such circumstances the Court is obliged to:
“(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including provision in the order) for the child to spend substantial and significant time with each of the parents.”
Sub-section (3) explains what is meant by the phrase “substantial and significant time”.
9.Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangements in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”.
A little later in the judgment the High Court said:
13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to making of an order…”
As there is to be an order for equal shared parental responsibility in this case I must apply the provisions of s 65DAA, as enumerated by the High Court.
In light of the findings of fact and the s 60CC considerations set out previously in the Interim Judgment, I have considered as required by s65DAA(1)(a) whether X spending equal time with each of the parents would be in her best interests. As this would require very considerable disruption to the child’s routine and most likely exacerbate the behavioural issues which X currently exhibits I do not consider it would be in the child’s best interests to spend equal time with each parent.
I have next to consider whether it would be reasonably practicable for X to spend equal time with each parent. Given that the father is in Perth and (omitted) for considerable periods of time this is not practicable and further I have found that it would not be in X’s best interests to spend equal time with each parent.
Similarly, as required by s 65DAA(2)(a), I have considered whether X spending substantial and significant time with each of the parents is in the best interests of X. I find that it is. I also find that within the limits of the father’s work arrangements it is reasonably practicable (s.65DAA(2)(b)). Accordingly, I have considered making an Order, or including a provision in an Order, for X to spend substantial and significant time with each of the parents, and I have made appropriate Orders largely by consent.
Conclusion
For the reasons set out above and detailed in the Interim Judgment I find that it is in the best interests of X to continue to have the benefit of time with each of her parents.
I make Orders by consent in the form of the Orders attached and marked together with additional Orders. I am of the view that the Orders are workable, equitable and in X’s best interests.
I have not made Orders in relation to the father’s movement to and from Perth and (omitted) as there is simply too much uncertainty. I note however that there is specific provision in Order 20 of the Consent Orders dated 1 June 2012 which deals with the parties resolving disputes in relation to the operation of these Orders.
I have declined to make any change in the time X is collected and returned during the holiday periods as requested by the Applicant. This is a matter the parties should be able to resolve between themselves so as to preserve some flexibility and take into consideration any temporary changes in circumstances.
I have made an Order that X is to be collected from and returned to the mother’s house. This provides certainty for the future and was agreed by the parties during the hearing.
I have not made Orders to restrict where the mother lives as there is no evidence that any such move is in contemplation. It should be considered when and if the mother wants to make a change in her residence in light of the factual situation at that time.
These Orders also reduce the likelihood of further litigation between the parties.
I have dealt separately with the mother’s application for costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Pascoe CFM
Date: 23 August 2012
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