OBERON & BARSTOW
[2012] FMCAfam 340
•1 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| OBERON & BARSTOW | [2012] FMCAfam 340 |
| FAMILY LAW – Parenting – best interests of children – amount of time to spend with father – dispute over changeover location – disagreement over possession of child’s passport. |
| Family Law Act 1975, Part VII |
| Mazorski v Albright (2007) 37 Fam LR 518 McCall v Clark [2009] FamCAFC 92 Rice v Asplund (1979) FLC 90-725 |
| Applicant: | MR OBERON |
| Respondent: | MS BARSTOW |
| File Number: | BRC 563 of 2007 |
| Judgment of: | Pascoe CFM |
| Hearing dates: | 7-8 March 2012 |
| Date of Last Submission: | 8 March 2012 |
| Delivered at: | Sydney |
| Delivered on: | 1 June 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Weaver |
| Solicitors for the Applicant: | Mullane & Lindsay |
| Counsel for the Respondent: | Ms De Vere |
| Solicitors for the Respondent: | Watts McCray Solicitors |
INTERIM ORDERS
All previous parenting Orders in relation to the child X, born (omitted) 2003 (“the child”) be discharged.
That the child spend time with the father during school terms each alternate weekend with time on an eight week cycle as follows:
(a)Weekend 2 of 8 be spent in the Newcastle area;
(b)Weekend 4 of 8 be spent in the Sydney and/or Wollongong areas;
(c)Weekend 6 of 8 be spent in the Newcastle area; and
(d)Weekend 8 of 8 be spent in the Sydney and/or Wollongong areas.
For the purposes of Order 2 above, failing agreement between the parties, changeovers will take place as follows:
(a)During time spent with the father pursuant to Order 2(a) above, the father will collect the child from the mother’s residence at 9.00am Saturday morning and the mother will collect the child from (omitted) Railway Station at 2.30pm on Sunday;
(b)During time spent with the father pursuant to Order 2(b) and 2(d) above, the father will collect the child from the mother’s home at 9.00am on Saturday and return the child to the mother’s home at 5.00pm on Sunday;
(c)During time spent with the father pursuant to Order 2(c) above, the mother will deliver the child to the father at (omitted) Station at 7.00pm on the Friday and collect the child from (omitted) Railway Station at 2.30pm on Sunday.
During school terms with more than eight (8) weeks, the cycle at Order 2 will begin again;
The mother and father shall forthwith do all acts necessary and sign all applications required to apply for a passport for the child. The passport is to be retained by the mother and provided to the father no less than seven days prior to X’s departure on overseas travel with the father and the father is to return the child’s passport to the mother no later than seven days after the child’s return to Australia. In the event the father requires the child’s passport to obtain a travel visa, the mother will make the passport available to the father on seven days notice, with the father to return the passport within seven days of the travel visa being received subject to departure date.
In relation to Order five, this order applies only to travel to (omitted).
All communication between the parties shall be by email in the first instance and failing the availability of email by text message.
Additional Interim Orders be made by consent in accordance with the attached document titled “Consent Orders”.
The matter be set down for hearing on Friday 6th July 2012 at 2.15pm.
The father is to file and serve any additional affidavit evidence by 4.00pm on 14 June 2012.
The mother is to file and serve any additional affidavit evidence in response by 4.00pm on 28 June 2012.
Costs be reserved.
NOTATION
A.Pursuant to section 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 are set out in Attachment A and these particulars are included in 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).
INTERIM CONSENT ORDERS
By Consent
That all previous parenting Orders in relation to the child X born (omitted) 2003 (“X”) be discharged.
That except as otherwise stated, the Father and the Mother are to have equal shared parental responsibility for the major long term issues in relation to X.
That the Mother and the Father are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
3.1they shall inform the other parent about the decision to be made;
3.2they shall consult with each other on terms that they both agree;
3.3they shall make a genuine effort to come to a joint decision; and
3.4this Order does not require the Mother and Father to consult about issues that are not major long term issues in relation to X.
That notwithstanding Order 3 above:
4.1The Mother shall be responsible for the daily care, welfare and development of X when X is living with her; and
4.2The Father shall be responsible for the daily care, welfare and development of X when X is spending time with him.
That X live with the Mother.
That X spend time with the Father as follows:
6.1During school terms each alternate weekend commencing, 16 March 2012 as Ordered by the Court.
6.2During the New South Wales, Term 1, Term 2 and Term 3 school holidays from 12 noon on the Saturday following the last day of the school Term as defined in these Orders until 12 noon the following Saturday in even numbered years commencing 2012 and each alternate year thereafter and from 12 noon on the second Saturday following the last day of the school Term as defined in these Orders until 12 noon the following Saturday in odd numbered years commencing 2013.
6.3For one half of the New South Wales Term 4 (December/January) school holidays as defined by these Orders, being the first half of all such school holiday periods which commence in even numbered years and the second half of all such school holiday periods which commence in odd numbered years.
6.4For each alternate four (4) day Easter period from the conclusion of school on Thursday to 12.00 noon on Easter Monday commencing 2013 and each alternate year thereafter, PROVIDED THAT if Easter takes place during the school holiday period, Order 6.2 is to operate such that X shall spend the half of the holiday period during which Easter occurs with the parent with whom they are to spend Easter.
6.5For the purposes of Order 6.4, in the event that Easter does not take place during the school holiday period, the Father and/or the Father’s nominee shall collect X from school at the commencement of his time pursuant to order 6.4 and the Mother and/or the Mother’s nominee shall collect X from the (omitted) Railway Station at the conclusion of the Father’s time.
6.6If the Father is not otherwise spending time with X on Father’s Day in any year pursuant to 6.1 or 6.2, from 9.00am until 5.00pm on Father’s Day with the Father and/or the Father’s nominee to collect and return the child from/to the Mother’s residence.
6.7If the Father is not already spending time with X on her birthday pursuant to any other provision of these Orders, then on X’s birthday as follows:
6.7.1from after school until 6.00pm if X’s birthday falls on a school day with the Father to collect X from her school and to return X to the Mother’s usual place of residence; or
6.7.2from 1.00pm to 6.00pm if X’s birthday falls on a non-school day, with changeover to occur at the Mother’s usual place of residence.
6.8The Father’s time with X pursuant to Order 6.1 is suspended during the operation of Order 6.2.
That the Father’s time with X pursuant to Order 6 above is suspended:
7.1On Mother’s Day each year from 9.00am until 5.00pm with the Mother and/or her nominee to collect X from the Father’s usual place of residence;
7.2For each alternate four (4) day Easter period from the conclusion of school on Thursday to 12.00 noon on Easter Monday commencing 2012, PROVIDED THAT if Easter takes place during the school holiday period, Order 6.2 is to operate such that the child shall spend the half of the holiday period during which Easter occurs with the parent with whom they are to spend Easter.
7.3If the Mother is not otherwise spending time with X on her birthday pursuant to any other provision of these Orders, then on X’s birthday as follows:
7.3.1from after school until 6.00pm if X’s birthday falls on a school day; or
7.3.2from 1.00pm to 6.00pm if X’s birthday falls on a non-school day, with changeover to occur at the Father’s residence (if the Father is spending time with X in Newcastle as required by these Orders) or at the Mother’s usual place of residence (if the Father is spending time with X in the Sydney / Wollongong areas as required by these Orders) .
That within seven (7) days from the date of these Orders, the parties shall jointly agree to the appointment of a treating doctor for X and failing agreement the Mother shall determine who X’s treating doctor will be.
That the parties shall follow the recommendations and treatment plan of the treating doctor for X appointed pursuant to Order 8.
That for the purposes of Order 6.2 and 6.3, the following will apply:-
10.1School terms are defined as those terms applying to NSW Government School students as published by the Board of Studies NSW and set out on the internet website of the Board of Studies NSW;
10.2School holiday periods are defined to commence at 12.00 noon the day following the last day of the school term as defined by Order 10.1 above and shall conclude at 12.00 noon on the day immediately preceding the commencement of the next school term as defined by Order 10.1 above;
10.3Changeover half way through a school holiday period is to occur at 12 noon on the mid-point day, with a day being defined as a 24 hour period, between the first and last day of each school holiday period;
10.4In the event that there are a uneven number of days during a school holiday period the Father shall have the benefit of the additional day;
10.5Changeover for school holidays shall be effected with the Father and/or his nominee collecting X from the Mother’s usual place of residence at the commencement of his time with X and the Mother and/or her nominee shall collect X at the conclusion of the Father’s time from (omitted) Railway Station.
That for the purposes of Orders 6.2 and 6.3 the Father shall spend time with X during the 2012, 2013, 2014 and 2015 school holidays as follows:
11.1In 2012:
11.1.1During the Term 1 school holidays from 12 noon Saturday, 14 April 2012 to 12 noon Saturday 21 April 2012;
11.1.2During the Term 2 school holidays from 12 noon Saturday, 30 June 2012 to 12 noon Saturday 7 July 2012;
11.1.3During the Term 3 school holidays from 12 noon Saturday 22 September 2012 to 12 noon Saturday 29 September 2012; and
11.1.4During the Term 4 (December/January) school holidays from 12 noon Saturday, 22 December 2012 until 12 noon Thursday 10 January 2012.
11.2In 2013:
11.2.1During the Term 1 school holidays from 12 noon Saturday, 20 April 2013 to 12 noon Saturday 27 April 2013;
11.2.2During the Term 2 school holidays from 12 noon Saturday, 6 July 2013 to 12 noon Saturday 13 July 2013;
11.2.3During the Term 3 school holidays from 12 noon Saturday 28 September 2013 to 12 noon Saturday 5 October 2013;
11.2.4During the Term 4 (December/January)/.summer school holidays from 12 noon Wednesday, 8 January 2014 until 12 noon Monday, 27 January 2014.
11.3In 2014:
11.3.1During the Term 1 school holidays from 12 noon Saturday, 12 April 2014 to 12 noon Thursday, 17 April 2014 and from 12 noon Thursday, 24 April 2014 to 12 noon Saturday, 26 April 2014;
11.3.2During the Term 2 school holidays from 12 noon Saturday, 28 June 2014 to 12 noon Saturday 5 July 2012;
11.3.3During the Term 3 school holidays from 12 noon Saturday 20 September 2014 to 12 noon Saturday 27 September 2014;
11.3.4During the Term 4 (December/January) school holidays from 12 noon Saturday, 20 December 2014 until 12 noon Thursday 8 January 2014
11.4In 2015:
11.4.1During the Term 1 school holidays from 12 noon Thursday, 2 April 2015 to 12 noon Saturday 11 April 2015;
11.4.2During the Term 2 school holidays from 12 noon Saturday, 27 June 2015 to 12 noon Saturday 4 July 2015;
11.4.3During the Term 3 school holidays from 12 noon Saturday 19 September 2012 to 12 noon Saturday 26 September 2012;
11.4.4During the Term 4 (December/January) school holidays from 12 noon Thursday, 7 January 2016 to 12 noon Tuesday, 26 January 2016.
That a reference in these Orders to “the Mother’s nominee” and “the Father’s nominee” is to refer to a relative or a person well known to X.
That in the event the Father or a member of the Father’s extended family are unable or unavailable to personally care for X for any period of time greater than six (6) hours in duration whilst X is in his care pursuant to these Orders, then he shall give the Mother the first option to care for X subject to the Mother’s availability for the time the father or a member of the father’s extended family is not available.
That the Father shall deliver and return to the Mother all of X’s clothing, school supplies and belongings which accompany X when she spends time with the Father, and the Father shall ensure that X’s clothing is returned in a clean condition.
That X shall communicate with each parent by telephone at such times as she reasonably requests but otherwise between 6.30pm and 7.00pm on Monday and Wednesday in each week and in relation to such communication each parent shall:
15.1ensure that X is available to receive each telephone call;
15.2arrange for X to telephone the parent on the following night if, for any unforeseen circumstance, X misses any telephone call from a parent; and
15.3ensure X has privacy during each of her telephone conversations.
That the Mother and Father shall:
16.1keep the other parent informed at all times of their residential address and landline contact number;
16.2keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat X and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about X;
16.3inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by X. This Order authorises any treating medical practitioner to release the child’s medical information to the other parent.
That the parents shall authorise, by this Order, the school attended by X to give each parent information about X’s educational progress and other school related activities and to supply each parent with copies of school reports, photographs, certificates and awards obtained by X (at the requesting parent’s cost).
That during the time X is with either parent, that parent shall:
18.1respect the privacy of the other parent and not question X about the personal life of the other parent;
18.2speak of and to the other parent respectfully; and
18.3not denigrate or insult the other parent or their family in the presence or hearing of X nor permit any other person to do so.
Each parent shall be and is permitted to travel outside the Commonwealth of Australia for a holiday with X, provided that:
19.1X has attained the age of 10 (ten) years; and
19.2in all cases of international travel, both parents agree to the travel in writing, with neither parent to unreasonably withhold consent; and
19.3in all cases the international travel is not to a country rated by the Department of Foreign Affairs and Trade as “exercise caution” or worse; and
19.4that both the travelling parent and X shall be registered with the Department of Foreign Affairs and Trade “Smart Traveller” system prior to travelling; and
19.5that the travelling parent must obtain travel insurance which includes full medical cover X for the duration of time X is outside of the Commonwealth of Australia; and
19.6that such travel take place during that parent’s holiday time with X under these Orders; and
19.7that such travel is for a period not exceeding two weeks duration unless otherwise agreed between the parties provided that in all cases each parent gives to the other parent written details of the holiday including:
19.7.1dates of departure from and return to Australia;
19.7.2copy of itinerary provided by travel agent or airline;
19.7.3copy of return airline ticket/s;
19.7.4places it is intended to visit whilst away from Australia; and
19.7.5details of how X can be contacted whilst away from Australia including contact telephone number and addresses for all places where X will be spending overnight time.
19.8in the event the proposed travel involves a flight of greater than five (5) hours’ duration, X must return to the primary place of residence of the parent with whom she is spending time pursuant to these Orders no less than five (5) days prior to the commencement of each new school term as defined by these Orders; and
19.9the travelling parent must facilitate X telephoning the other parent on not less than three (3) occasions each week while X is overseas.
That the process to be used for resolving disputes about the terms or the operation of these Orders shall be as follows:
20.1The parents shall consult with a Family Dispute Resolution Practitioner to assist with resolving any dispute or reaching agreement about changes to be made; and
20.2The parents shall bear the costs of the Family Dispute Resolution Practitioner equally; and
20.3In the event that the parents cannot agree on a Family Dispute Resolution Practitioner, the Mother shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability; and
20.4The Father shall choose one of the listed practitioners within seven (7) days of receipt of the list; and
20.5If the Father fails to choose then the Mother may choose.
| 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 father is presently 44 years old and is employed as an (omitted) in Newcastle. The mother is also 44 years old, lives in (omitted), Sydney, and works part-time as an (omitted).
At the outset of the hearing there were a number of issues in dispute. The majority of these issues were dealt with by consent, in a document titled “Consent Orders” signed by both parties and provided to the Court on 8 March 2012. The Consent Orders deal with issues including parental responsibility, time spent with the child during holidays and special occasions, the child’s agreed medical practitioner, overseas travel and the process to follow in the event there is a dispute between the parties. The Consent Orders agreed to by the parties will take effect on the same date as the Orders of the Court in this matter.
The remaining Orders sought by the father, pursuant to the document “Minute of final orders sought by applicant father”, (exhibit A1) tendered to the Court on 8 March 2012 are:
6.1.2The child spend time with the father each alternate weekend from 7.00pm Friday to 4.00pm Sunday on a four week cycle as follows:
(a) That weekend 2 of 4 be spent in Newcastle (or such place as the father chooses);
(b) That weekend 4 of 4 be spent in the Sydney or Wollongong area.
10.In relation to changeover, failing agreement between the parties, the following shall apply:
10.2That order 6.1.2(a) be implemented by the mother delivering the child to the father at (omitted) train station or in the alternative (omitted) train station at 7.00pm on the Friday and collecting the child from the father’s residence at 3.00pm on the Sunday.
18.That the mother and father shall forthwith do all acts necessary and sign all applications required to apply for a passport for the child, but failing the joint application being completed within 21 days then the father may make an application without the consent of the mother. The passport will then be retained by the parent with whom the child is first due to travel overseas until such time as the other parent requires it, and then the passport shall be provided to the other parent no less than 7 days prior to departure and be retained by that other parent until required by the parent next travelling overseas with the child. In the event the passport is needed for a Visa, it should be made available to the parent needing it at 48 hours notice.
The mother sought the following orders in accordance with the document titled “Minute of order sought by the Respondent Mother”, (exhibit R1) tendered to the Court on 8 March 2012:
1.That the child spend time with the father during school terms each alternate weekend commencing 16 March 2012 with time to be spent in accordance with a. and b. as follows:
a.From 9.00am Saturday until 2.30pm Sunday on the second and fourth fortnights each term with the father or his nominee to collect the child from the mother’s home at the commencement and the mother or her nominee to collect the child from (omitted) Railway Station at the conclusion. Such time shall be spent in the Newcastle area. In the event the child has not spent time with the Father in the Newcastle area the father or his nominee shall return the child to the mother’s residence at the conclusion of his time and the father shall notify the mother not less than 24 hours prior to the commencement of his time.
b.From 9.00am Saturday to 5.00pm Sunday on all other occasions in each school term with the father or his nominee to collect the child from and return her to the mother’s home. Such time shall be spent in the Sydney and/or Wollongong areas.
2.In the event that the Court does not make Order 1 above then the mother seeks that the child spend time with the father during school terms each alternate weekend commencing 16 March 2012 with time to be spent in accordance with a. and b. as follows:
a.From the conclusion of school Friday until 2.30pm Sunday on the second and fourth fortnights each term with the father or his nominee to collect the child from school at the conclusion of the school day and the mother or her nominee to collect the child from (omitted) railway station at the conclusion. Such time shall be spent in the Newcastle area. In the event the child has not spent time with the father in the Newcastle area the father or his nominee shall return the child to the mother’s residence at the conclusion of the his time and the father shall notify the mother not less than 24 hours prior to the commencement of his time.
b.From the conclusion of school Friday to 5.00pm Sunday on all other alternate weekends in each school term with the father or his nominee to collect the child from school at the conclusion of the school day and return the child to the mother’s home at the conclusion of time. Such time shall be spent in the Sydney and/or Wollongong areas.
3.Where the father’s weekend coincides with a long weekend, the father’s time with the child is extended to Monday at:
a.12 noon for time spent pursuant to 1.a. or 2.a. above and
b.5 pm for time spent pursuant to 1.b. or 2.b. above.
4.The father shall notify the mother of all work-related and (omitted)-related travel he undertakes which occurs during time the child is spending or is to spend with him and the father shall provide to the mother written notice no less than forty eight (48) hours prior to his scheduled time with the child of all known work/(omitted) related travel to be undertaken when the child is next in his care and the arrangements for the child’s care including the address and contact telephone number of where the child will be staying.
5.That upon the parties agreeing to the child travelling overseas in accordance with Order 19 of the Minute of Consents Orders document, the parties will do all acts and things necessary to obtain a passport for the child such passport is not to be applied for before the child’s 10th birthday and is to be retained by the mother and provided to the father no less than forty eight (48) hours prior to departure with the father to return the child’s passport to the mother no later than forty-eight (48) hours after the child’s return to Australia, noting that in the event the father requires the child’s passport to obtain a travel visa, the mother will make the passport available to the father on forty-eight (48) hours notice, with the father to return the passport within forty-eight hours of receipt of said travel visa.
6.In the event that the father is unable to care for the child for a period in excess of twenty-four (24) hours during any period of time he is to spend with the child, the father’s time will be suspended.
7.All communication between the parties shall be by email in the first instance and failing the availability of email by text message.
The father was represented by Mr Weaver of Counsel. The mother was represented by Ms De Vere of Counsel.
On 1 June, reserved judgment in this matter – regarding the Application for Final Orders – was listed for delivery. On that date, at the time the matter was listed for delivery of Final Orders, Counsel for the father advised that the father had accepted a job which required him to move to Perth in the first instance and then to (omitted).
As this was a significant development from the facts presented at trial (see below), I was faced with either making the Final Orders and the father subsequently filing for new Orders, relying on Rice v Asplund, or reopening the matter. The parties agreed that I should make the Orders on an interim basis and list the matter for further hearing as soon as possible. I have done so.
Background
The mother and father began their relationship in 1991, married in 1992 and separated in 2006. The sole child from the relationship, X, was born on (omitted) 2003. After the child’s birth, the parties lived in towns south of Sydney in New South Wales until January 2005. In January 2005, the parties relocated to Queensland and lived in the (omitted) suburbs of Brisbane until the time of separation.
In 2008, Slack FM in the Brisbane registry made Orders enabling the mother to relocate to Sydney with the child. Further Orders were made regarding the father’s time spent with the child.
The father is not presently in a relationship. The mother has re-partnered and has been in a relationship with Mr L, aged fifty, since September 2010. The mother and Mr L do not live together.
The child is currently living with the mother at the maternal grandparents’ home in (omitted), Sydney, and spending time with her father as per Interim Orders made in February 2011. These Orders provided for X to spend alternate weekends with her father in Newcastle. The Orders also allowed for the father to spend at least two weekend periods in each term with the child in either Sydney or Wollongong. The father’s family live in the Wollongong area.
The parties current work arrangements were noted in the family report, at paragraph six:
“Mr Oberon is an (omitted) and works in the Newcastle area. It is understood that he has some limited flexibility in his work hours. Ms Barstow is not currently employed, apart from her (omitted) duties and she receives Centrelink benefits. Mr Oberon is also a member of the (omitted). Ms Barstow currently works for the (omitted) about fifteen hours a week and she also (omitted) on a regular basis.”
The proceedings:
On 16 June 2008, Slack FM made Orders permitting the mother and the child to relocate to Sydney from Brisbane. The child and the mother subsequently moved to Sydney in December 2008. The father moved to Newcastle in February 2009.
On 29 September 2010, the father made an initiating application seeking new orders which took his residence in Newcastle into account. With regard to that application, Sexton FM delivered interim Orders on 7 February 2011. The interim orders concerned the limited issue of how the child should be transported between the parties to ensure compliance with the Orders of June 2008. Her Honour provided for the child to spend alternate weekends with the father, with the majority taking place in Newcastle and some weekend time taking place in the Sydney/Wollongong area, to reduce the child’s travel time.
On 27 February 2012, the father filed an Amended Initiating Application. It is this Application which was before me at trial.
The Issues:
As noted above, the parties resolved a number of issues by consent at hearing. The issues which remain in dispute are:
a)Whether alternate weekend time with the father should commence on a Friday evening or Saturday morning;
b)How many alternate weekends should be spent in Newcastle and how many should be in the Sydney/Wollongong area;
c)Where and when changeovers should take place;
d)Whether the mother should be in possession of the passport, or whether the parent who last travelled overseas with the child should be in possession of the passport.
Evidence:
At hearing the father relied upon the following material:
a)Amended Initiating Application filed 27 February 2012;
b)Father’s affidavit filed 24 February 2012;
The mother relied upon the following material:
a)Affidavit of Dr N filed 7 March 2012;
b)Mother’s affidavit filed 27 February 2012;
c)Affidavit of Mr L filed 27 February 2012.
The following documents were placed into evidence as follows:
Exhibit No
Document
Date
Tendered by
A1
Minute of final orders sought by applicant father
8 March 2012
Father
A2
Printout of Cityrail train timetable, valid to 16 March 2012.
8 March 2012
Father
R1
Minute of Order sought by the Respondent Mother
8 March 2012
Mother
Family Report:
On 29 February 2012, the Family Report in this matter, authored by Ms M, was released to the parties. The report was prepared after interviews with and observations of the parties, the child, the maternal grandparents and the mother’s current partner. Ms M also considered the documents on file.
Ms M recommended that X continue to live with her mother, and spend time with her father each alternate weekend. As to the location of the time spent with the father, Ms M recommended that “each second alternate weekend that X spends with her father take place in the Sydney or Wollongong area and that Mr Oberon take responsibility for [the child’s] care from the close of school on Friday afternoon.” With regards to arrangements for transporting the child from Sydney to Newcastle and back, Ms M recommended the following:
a)Travel be arranged so that the child travel “as little as possible especially in peak hour”;
b)The mother take responsibility for transporting the child to and from Newcastle on the weekend that the child spends her time with the father there. With regard to this, Ms M wrote that “it… does not seem unreasonable that [the mother] should make arrangements for X to be transported to and from Newcastle once a month.”
c)During school holidays, the parties share in the transport involved in the child’s transition between their care.
Ms M also recommended that “if the weekend that [the child] spends with her father falls on a weekend which includes a public holiday, then the time that [the child] spends with her father should be extended to the same time on the public holiday that she would normally spend with her father on a Sunday.”
In her report, Ms M wrote that “[the child] presented as an energetic and healthy looking child. [She] did not seem uncomfortable when observed in the waiting room with her mother, her father and her maternal grandparents.” The family report writer noted that the child enjoyed a productive and positive relationship with both parents:
“[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.”
Ms M noted in her report that “[the child] seems to have some behavioural problems and her behaviour, when observed with both parents, seemed to indicate that this is, indeed, the case”. Ms M went on to note that “apparently [the child’s] behaviour has caused significant problems for her at school and resulted in her having difficult peer relationships.” Ms M said it was hard to know whether the child’s “challenging and difficult” behaviour was related to her family situation and her parents’ conflict. However at paragraph 42 of her report, Ms M stated that the family situation would not be helping:
“It seems very likely… that [the child’s] family situation and conflict between the two most important people in her life, her parents, is exacerbating any difficulties that she might have. [The parents’] approach to conflict is clearly not providing her with a positive example of how to deal with conflict and may be contributing to her aggressive behaviour towards others.”
Ms M was cross-examined on the contents of her Family Report on 7 March 2012. I found Ms M to be a reliable and thoughtful witness and weighted her evidence accordingly. I note, however, that her recommendation for the mother to take the child to and from Newcastle once per month would require the mother to spend Friday and Saturday night in Newcastle, a city where she appears to have no friends or family with whom she could stay.
Mr Oberon (the father)
The father relied on his affidavit filed 24 February 2012. In this affidavit, the father provided an update to his previous evidence before the Court. The father stated that from August 2011 he was deployed for a period of four months to the (omitted), as part of the (omitted) to the (omitted). He also deposed that he provided notice to the mother of this deployment, and that during his time overseas he communicated with the child twice per week by Skype.
Other issues discussed in the father’s affidavit include:
a)The mother undermining his role as parent;
b)The child’s behaviour;
c)Travel and changeovers;
d)International travel.
At hearing on 8 March 2012, the father provided evidence in chief and was cross-examined on his evidence. Much of the father’s oral evidence concerned the logistics of his proposal for weekend time with the child. However in his answers to a number of questions, the father also demonstrated an awareness of the unique needs and behaviour of the child, and showed a willingness to put her needs above his own. Overall I found the father to be a reliable witness, and I am confident that he is able to put the best interests of the child above any residual resentment he may feel towards the mother.
Ms Barstow (the mother)
The mother relied on her affidavit filed 27 February 2012 and also provided oral evidence on 8 March 2012. In her affidavit, the mother outlined the child’s daily routine, and gave her observations as to the child’s behavioural strengths and weaknesses. The mother outlined a number of strategies she had used to assist the child with her behaviour, including taking the child to a paediatrician, a General Practitioner, a Registered Psychologist and a Specialist Consultant Paediatrician.
Elsewhere in her affidavit, the mother discusses communication difficulties with the father, staying that “almost every weekend that X has spent time with Mr Oberon since he relocated to Newcastle, significant negotiations regarding the logistics of changeover have been required.” The mother also states that “I have found some of Mr Oberon’s telephone calls to me to be intimidating and unnecessarily unpleasant.” With regard to travelling to and from Newcastle, the mother deposes that “I do not feel safe either driving, or catching the train so late at night, and am concerned about exacerbating my current injuries or having a fatigue-related accident if I drive.”
From paragraphs 120 to 128 of her affidavit, the mother outlines the effect of travel on her health, and states that “as a general consequence of my current medical conditions, I am in a great deal of discomfort when I am required to sit and drive for an significant period of time especially after a day of computer work”. Elsewhere in her affidavit, the mother discusses the child’s relationship with the father, her own relationship with the father, her participation in parenting courses and her present employment.
At hearing, the mother presented as a measured and reliable witness. It was clear, however, that specific details of the father’s proposal for time to spend with the child over alternate weekends cause the mother significant frustration. When asked by Ms De Vere whether Orders requiring the mother to “travel to be somewhere by 7pm on a Friday” was “something that [the mother] could manage and commit to each alternate weekend” the mother replied “no”. Overall, however, the mother presented as being a capable and responsive parent, who is keen to foster a relationship between the child and the father. There is however still quite clearly a very high level of conflict and distrust between the parties.
Dr N
Dr N is a General Practitioner based in (omitted), Sydney. In her affidavit filed 7 March 2012, she states that the mother has been attending her practice since November 2010. Annexed to the affidavit are two letters addressed to the “Family Court, Sydney” regarding the mother. In the first letter, dated 31 January 2011, Dr N writes that the mother, who is a patient at her practice, “has history of multiple medical conditions. She has been diagnosed with Lymphoedema since Nov 2005.” Dr N goes on to write that:
“With lymphoederna of lower limbs, lumbar disc disease and bilateral shoulder and neck injuries she will not be able to drive long distances for long periods of time and repeating it twice in a weekend. Frequently travelling will increase her risk of deep vein thrombosis with lymphoedema increasing her risk and aggravate lumbar, neck and shoulder pain.”
In the second letter annexed to the affidavit, dated 6 March 2012, Dr N confirms that the mother suffered lumbar and should work related injury in 1992, was diagnosed with Lymphoedema in November 2005, and had shoulder surgery in 2007. Dr N goes on to write:
“She [the mother] was diagnosed with Schwannoma in the thoracic spine in May 2011 and had surgery in July 2011 by Dr K, a neurosurgeon. She was off work for 3 months. She has cervical and thoracic muscle pain with recurrent headaches since her surgery. She has been seeing a physiotherapist regularly.
“With lymphoedema of lower limbs, lumbar disc disease, thoracic muscle spasm and bilateral shoulder and neck injuries she will not be able to drive long distances for extended periods of time, and repeated long distance driving twice in a weekend on a regular basis. Frequent travelling will increase her risk of deep vein thrombosis due to lympoedema. The strain of high speed driving and sitting for long periods will aggravate thoracic, lumbar, neck and shoulder pain.”
The father did not require Dr N for cross-examination.
In making final Orders in this matter, I was cogniscant of the evidence of Dr N, and the limitations placed on the mother by her medical conditions.
Mr L
Mr L’s affidavit was filed on 27 February 2012. In his affidavit, Mr L states that he is the current partner of the applicant, and they have been together for “approximately eighteen (18) months”. Mr L states at paragraph 7 to 9 that he sees the child “approximately once per fortnight, and more frequently during school holidays” and that he enjoys a “friendly” relationship with the child. Mr L describes the child as “at times a sweet and easy-going eight (8) year old” but he also states that he has also observed her to be “moody, tense and to have a short concentration span, at times when things do not go her way or something happens that she is not expecting.”
Mr L’s affidavit contained observations about the child’s dislike of travelling to Newcastle, and he also related a comment the father had made to the mother during one changeover: “It would be a pity if you abandoned [the child] and she started her life in the (omitted).” Mr L also states in his affidavit that he has “limited availability to assist in transporting [the child] to and from Newcastle due to his weekend commitments.
Similarly to Dr N, Mr L was not required for cross-examination by the father.
Legal Principles
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 the child; 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 the child as the paramount consideration in deciding whether to make a particular parenting order.
The primary considerations are firstly the benefit to the child of having a meaningful relationship with both parents; and secondly, the need to protect the child from physical or psychological harm; from being subjected to, or exposed to, abuse, neglect or family violence.
In determining the best interests of the child, 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).
There is a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for that child; s61DA (1). This presumption does not apply if I find that there are reasonable grounds to believe that a parent of the child has engaged in child abuse or family violence; s61DA(2). The presumption may also be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child; s.61DA(4). In the event that I do find that a parenting order should be made for equal shared parental responsibility, I must also consider whether the child spending equal time with each parent is in the child’s best interests and is reasonably practicable; s65DAA(1)(a) and (b). In the event that I do not find that it is in the child’s best interests for the child to spend equal time with each parent, then I must consider ordering that the child spend ‘substantial and significant’ time with each parent, again with the best interests of the child in mind; s65DAA(2).
Application of the law to the facts
Parental responsibility
I note that the Consent Orders agreed to by the parties state, at Order 2, that “except as otherwise stated, the Father and the Mother 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.
In Mazorski v Albright (2007) 37 Fam LR 518, Brown J concluded that a “meaningful relationship”, as referred to in the Family Law Act 1975, is one which is “important, significant and valuable to the child”. Her Honour further found that the word meaningful is a “qualitative adjective, not a strictly quantitative one.” This analysis was endorsed by the Full Court of the Family Court in McCall v Clark [2009] FamCAFC 92. In this matter, the Full Court also made the point that the legislation does not focus on the relationship between the parents and the child as such, but rather the benefit it might have for the child.
The orders I have made, along with the orders reached by consent, will enable the child to have a meaningful relationship with both parties which is in her best interests. This is especially important, given the comments of the family report writer, who stated that “it is clear [the child] has a close relationship with both parents” and noted that the child was “relaxed and comfortable” in the presence of her mother and her father.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence
No evidence was placed before the Court which would suggest that the child is at unacceptable risk of harm. I make two observations, however. Firstly, I note that evidence of the family report writer and the mother indicates that the child has in the past evinced signs of sickness after long car journeys, in particular between Sydney and Newcastle. For this reason, I have designed the Orders so that the child will only need to make one car journey of this nature per eight-week cycle during semester.
Secondly, it is apparent from the evidence that the child has been exhibiting behavioural difficulties. In her affidavit, the mother states at paragraph 169 that she has at times observed the child to:
·Display anger;
·Be overly emotional;
·Have low self-esteem;
·Be hyperactive,
·Have poor sleeping habits, including nightmares;
·Experience difficulties with her school work and in making friends at school;
·Experience behavioural problems at school and at home; and
·Hit, kick and hurt her pets.
The mother states that these are the “effects of a child in a high conflict situation”. As an example of the sort of conflict the child is brought into contact with, the mother states at paragraph 171 of her affidavit that “the child has witnessed a number of arguments between Mr Oberon and I and has at times told us to stop.”
As noted elsewhere in these reasons for judgment, the family report writer was categorical about the impact that exposure to such arguments and tension may have on the child. At paragraph 42 of the family report, it is noted that “it seems very likely… that [the child’s] family situation and conflict between the two most important people in her life, her parents, is exacerbating any difficulties that she might have.”
It is therefore in the best interests of the child if the parents can minimise any conflict between them, particularly in the presence of the child. For this reason, I commend the parents for making Order 18 in the consent orders, which requires both parties to:
·respect the privacy of the other parent and not question X about the personal life of the other parent;
·speak of and to the other parent respectfully; and
·not denigrate or insult the other parent or their family in the presence or hearing of X nor permit any other person to do so.
I have made an additional Order requiring the parties to communicate by email or text where possible, as there is evidence that when the parties have discussions in person or over the phone, there is significant potential for a disagreement to flare into an argument which is overheard by the child. In addition the mother complains of bullying by the father when she has conversations on the telephone with him.
Additional considerations:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
It is clear from the evidence that the child enjoys spending time with both parents. There was some disagreement from the parties as to the impact that travel between Sydney and Newcastle has on the child. The family report writer, at paragraph 38 of the report, records the child saying that she does not like care travel “all the time” and that she sometimes gets sick and vomits. In her discussions with the family report writer, the mother supported this position, stating that the child “has been very distressed about the travel and changeovers involved in her spending time with her father.” During cross-examination, the father stated that the child’s travel-related sickness was minimal:
“I accept that X told the counsellor that she got sick and vomited. X has not vomited in the car with me for, probably, two years, and I’ve had many other children in the car with me that have vomited since then. So she doesn’t appear to be on the excessive side of car vomiting”
Per the final Orders of the Court, the child will only make one trip from Sydney to Newcastle by car each eight week cycle during term time. This will minimise the number of long distance car trips, and hence the number of occasions on which the child could potentially suffer from car sickness.
(b) the nature of the relationship of the child with (i) each of the child’s parents; and (ii) other persons including any grandparents or other relative of the child;
The family report writer notes, at paragraph 42 of her report, that the child has a close relationship with both her parents. From the evidence, it is apparent that this is indeed the case. Elsewhere in the family report, it is reported that the father stated that he “loves to look after [the child] and he looks forward to being with her.” The father advised the family report writer than when he is spending time with the child, they engage in activities such as ice-skating, riding bikes and going to movies.
In her affidavit, the mother demonstrates a high level of knowledge in relation to the child’s day to day needs and routine. From this affidavit and her oral evidence, as well as the evidence of the family report writer, it is clear that the mother has been and will continue to be a capable primary carer for the child.
Evidence provided to the court also demonstrates that the child enjoys a beneficial relationship with both maternal and paternal grandparents. The family report writer records the maternal grandparents as saying that “their primary concern is that [the child] is happy and feels secure” and that “[the child] could remain living at their home as long as she wants or needs to stay there”.
In his affidavit filed 24 February 2012, the father states that the child has enjoyed a number of experiences with his family, including:
·A train trip from Wollongong to Newcastle with the paternal grandmother (paragraph 29(b) of affidavit);
·Meeting her new baby cousin in (omitted) (paragraph 29(c) of affidavit
The orders will enable the child to spend time with both her paternal and maternal families. This will facilitate the development of a meaningful relationship with these important people in her life.
(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;
Both parties, in their evidence, acknowledge that the other party is a good parent. At paragraph 160 of her affidavit, the mother states “I am committed to facilitating Mr Oberon’s ongoing relationship with X. I acknowledge that X enjoys spending time with Mr Oberon and is a significant person in her life and that this relationship should be supported.” The father, at paragraph 13 of the family report, is quoted as saying “I can’t fault her as a mother”.
Despite these positive comments, each party has had comments to make about past grievances and areas in which the other party could improve. The father states that the mother is “difficult” about issues such as clothing and hairclips, and “continues to seek to monitor my time with X”. The father also expresses disappointment that the mother did not agree to the child spending extra time with him after his return from deployment to the (omitted) in late 2011. The father does note, however, that the mother agreed to the child spending one day a month with the parental grandparents during his deployment, however it appears that health and financial considerations may have prevented the paternal grandparents from doing so.
The mother also makes criticisms of the father’s efforts to facilitate a close and continuing relationship between her and the child. At paragraph 168 of her affidavit, the mother states:
“I am concerned that Mr Oberon has, on occasions, undermined me and is purposefully uncooperative, for example:
168.1 When X was attending Kindergarten, I became aware that Mr Oberon had changed X’s surname from Oberon-Barstow to Oberon.
168.2 Mr Oberon created X a Skype account in the name of X instead of Oberon-Barstow; and
168.3 Mr Oberon has, at times, not returned items of X’s clothing to me.
At trial, the family report writer, Ms M, stated that it would be in the best interests of the child for both parties to make an effort to ensure the relationship between the child and the other party is maintained. Page six of the trial transcript records Ms M as saying:
“I think if the parents were able to work together to make the situation work for [the child], in her spending time with each of them, then I think it may assist [the child] to get about the business of being a child and learning and playing with friends.”
The Orders I have made are designed to assist the parents in working together in an equitable way to facilitate contact with the child taking into account the need for the father to maintain his employment, the mother’s medical condition and the benefit of minimising late night train travel for the mother. Each of the parents must make an effort to facilitate contact and be seen by the child to do so.
(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 his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The orders do not represent a marked change from the present situation. This is in the best interests of the child, as her behavioural issues will benefit from routine and predictability in her day to day life.
(e) the practical difficulty and expense of a 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;
The father lives in Newcastle, approximately 2.5 hours by car from the mother’s residence, longer in peak-periods and 3 to 3.5 hours by public transport. This could in theory present practical difficulties to the father spending time with the child, however both parties have exhibited an intention to ensure that the child maintains a meaningful relationship with the father, despite the father’s physical distance from the child’s primary residence.
(f) the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
As noted at additional consideration (b) above, the child has the benefit of a large support network, including her mother and father and family members on both sides. This presence of this support network will ensure that the emotional and intellectual needs of the child are met. As to the practical issue of the child’s primary residence, the family report at paragraph 34 states that “Mr and Mrs Barstow [the maternal grandparents] agreed than the mother and the child could remain living at their home as long as she wants or needs to stay there.”
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
In paragraph 8 of the family report, the father is recorded as presenting “a rather negative view of Ms Barstow, suggesting at times that she is irrational and that in the past she may even have been paranoid.”
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
This consideration does not apply to these proceedings.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
To the extent to which it is relevant, this consideration is addressed elsewhere in these Reasons for Judgment.
(j) any family violence involving the child or a member of the child's family;
This consideration does not apply to these proceedings
(k) any family violence order that applies to the child or a member of the child's family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person;
This consideration does not apply to these proceedings
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
At paragraph 51 of her family report, Ms M wrote that:
“It is likely that whatever Orders are made that the parents will continue to be in conflict. As [the child] grows older and her needs and wishes change, alterations will need to be made in the parenting arrangements and unless the parents are able to develop a reasonable relationship then it is likely that [there] may be ongoing and severe conflict between the parents. This will be very detrimental to [the child’s] welfare.”
I also note the comments of the mother at paragraph 172 of her affidavit:
“Since recommencing proceedings in this Court, I have observed X’s behaviour to deteriorate, especially when we are approaching a Court event and when X returns from a weekend with Mr Oberon immediately prior to or post a Court event. For example, X spent time with Mr Oberon in Wollongong after the interim hearing on 4 February 2011. On 8 February 2011, I was contacted by one of X’s teachers who reported that X was being disrespectful towards her teachers and had kicked a girl in the playground and was therefore placed in detention.”
With regard to these comments, I commend the parties for reaching a number of Orders by consent at trial. The other final orders I have made, with regard to changeover points, time spent on alternate weekends and the child’s passport, will provide structure and certainty. It is my opinion that the final Orders will provide the parties with a regime which enables them to put their existing disputes aside and work together to ensure that the best interests of the child are met.
(m) any other fact or circumstance that the court thinks is relevant.
I note the father’s (omitted) commitments which may impact upon his time spent with the child. I have declined to make any specific Orders as requested by the mother as I find the father is able to manage these arrangements.
I have also made Orders in relation to obtaining a Passport for the child. The mother sought to delay any application until the child was ten years old on the basis that she was not travelling until then. However there was no good reason advanced as to why as a matter of convenience the Passport should not be obtained now and simply retained by the mother until the child was to undertake overseas travel.
Conclusion
Partly due to the cooperation of the parties in reaching lengthy consent orders, this was a simpler matter to determine than many which come before the Court. This is not, however, to understate the significance of the dispute between the parties with regard to the changeover point for time spent with the father in Newcastle. As the family report writer noted:
“Although the issue of travel and changeover arrangement might seem on the surface to be rather minor, it is sometimes the case that some, apparently minor issues become the focus of major and ongoing disputes which impact severely on both the adults and children involved. Sometimes such disputes are related to unresolved issues related to the breakup of relationships. Some of the comments that [the father] made indicated that he may still be angry with [the mother] for leaving their relationship and the disruption this has caused to his life.”
The family report writer further noted that the child has been exhibiting “behavioural problems” and suggested it was “very likely… that [the child’s] family situation and conflict between the two most important people in her life… is exacerbating any difficulties that she might have.”
In making final Orders with regard to the issues in dispute, I have had regard to medical evidence adduced by the mother as to her ongoing medical conditions which hinder her ability to travel, particular when that involves high speed driving and sitting for long periods. I have also had regard to the father’s relocation to Newcastle in February 2009, subsequent to the mother moving to Sydney in December 2008 pursuant to Court Orders, which I view as a positive sign that the father is keen to be closer to the child in order to maintain a close and beneficial role in her life.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Pascoe CFM
Date: 1 June 2012