PADULA & PADULA

[2021] FCCA 71

FEDERAL CIRCUIT COURT OF AUSTRALIA

PADULA & PADULA [2021] FCCA 71

Catchwords:
FAMILY LAW – Interim Parenting – time child spend with father – progression of overnight time – best interest of child.

Legislation:

Family Law Act 1975 (Cth), s.69ZL

Applicant: MR PADULA

Respondent: MS PADULA

File Number: PAC 2354 of 2020

Judgment of: Judge Obradovic

Hearing date: 27 November 2020

Date of Last Submission: 27 November 2020

Delivered at: Parramatta

Delivered on: 25 January 2021

REPRESENTATION

Counsel for the Applicant: Mr Gardiner

Solicitors for the Applicant: Walter & Elliott Family Lawyers

Appearing for the Respondent: Ms Remaili

Solicitors for the Respondent: Crawford Ryan Lawyers

THE COURT ORDERS PENDING FURTHER ORDER

1. All previous parenting orders are discharged.

2. The child, X, born in 2019, shall live with the mother.

3. X shall spend time with the father as follows:

   (a)From the date of these Orders until 25 April 2021, each alternate week from 9am on Saturday until 12noon on Sunday, such time to occur at the paternal grandparent’s home or such other place as deemed appropriate by the father;

   (b)From 26 April 2021 until 25 July 2021, each alternate week from 6pm on Friday to 12noon on Sunday, such time to occur at the paternal grandparent’s home or such other place as deemed appropriate by the father;

   (c)Thereafter, in a six-week cycle:

   (i)In the first and third week at the paternal grandparent’s home or such other place as deemed appropriate by the father, from 6pm on Friday until 3pm on Sunday; and

   (ii)In the fifth week at the father’s home or such other place as deemed appropriate by the father, from 6pm on Friday until 3pm on Sunday with changeover to occur at McDonald’s in City B.

   (d)On special occasions:

   (i)From 9am until 4pm on Saturday 27 March 2021 (to account for X's birthday in 2021) if it is a day that X is not otherwise spending time with the father pursuant to Orders above; and

   (ii)From 9am until 4pm on Father's Day if it is not a day that X would otherwise be spending time with the father pursuant to Orders above.

   (e)At all other times as agreed to between the parents in writing.

4. Unless otherwise agreed in writing between the parents or provided for in these Orders, the father is to collect X from the home of the mother at the commencement of X’s time with him and the mother is to collect X from the home of the paternal grandparents or the father’s home at the conclusion of X’s time with father, as the case may be.

5. Where these Orders provide for changeover to occur at McDonald’s in City B, the address of same is C Street, City B in the state of New South Wales.

6. Notwithstanding any other Order, X spend time with the mother on Mother’s Day from 9am to 4pm.

7. Both parents are permitted to liaise directly with any medical practitioner, dental practitioner, mental health practitioner (including counsellors, psychologists or psychiatrists) or any hospital, medical, therapeutic or other health service provider or institution attended by X to obtain information about the physical, dental and/or mental health of X and the progress of any treatment the child may be receiving and that these Orders will be sufficient authority to authorise the release of such information, including copies of any medical reports, to the parents.

8. Within 72 hours, the mother shall ensure that the practices of X's General Practitioner (“GP”), Paediatrician and Dietician are informed of the father's name and contact details and are provided with a copy of these Orders.

9. The mother shall inform and keep the father informed of the dietary requirements of X as recommended by his GP, Paediatrician and/or Dietician including any food intolerance challenges that X is undergoing or foods that X is to eliminate from his diet from time to time.

10. The parents shall notify each other as soon as reasonably practicable, and if possible within 2 hours, of any serious issues relating to X's health with such notification to include:

    (a)the nature of the issue, illness or injury;

    (b)the name and contact details of any medical or other health practitioner who has attended upon or treated X; and

    (c)all reasonable details of the treatment or management regime.

11. Except as otherwise agreed, the parents communicate all non-urgent issues relating to the care, welfare and development of X via email and text message, except in cases of emergencies when communication shall be via telephone.

12. Each parent shall notify the other parent of any change to their telephone number(s), address and email address or home address as soon as reasonably practical and in any other event no later than 24 hours following any such change.

13. Each parent will enrol in and complete the first available "Circle of Security" parenting course and provide the other parent with a copy of their certificate of completion within 7 days of receiving such a certificate.

14. To the extent neither parent has done so already, each parent will enrol in and complete the first available Keeping Kids in Mind or Parenting After Separation parenting course and provide the other parent with a copy of their certificate of completion within 7 days of receiving such a certificate.

15. Within 6 months, the parents shall attend mediation with an accredited Family Dispute Resolution Practitioner (“FDRP”):

    (a)as agreed between the parents or failing agreement within 4 months of this Order as nominated by the Law Society of New South Wales Solicitors Settlement Service.

16. The parents shall be responsible for ensuring that a copy of their documents as filed are provided to the FDRP not less than 7 days prior to the mediation.

17. Forthwith upon a FDRP being agreed or appointed then each party shall:

    (a)Do all things, sign all documents and give all consents, authorities and instructions necessary to instruct and retain that practitioner;

    (b)Pay one half of all fees charged by the practitioner; and

    (c)Attend at such times, dates and places necessary to complete mediation.

18. Pursuant to section 62G(2) of the Family Law Act1975 the parties and the child of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report.

19. The Family Report to deal with the following matters:

    (a)Any views expressed by the child the subject of parenting orders sought in this case, provided that the child shall not be required to express a view in relation to any matter.

    (b)The nature of the relationships of the child with each of the child’s parents and with significant other persons.

    (c)The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.

    (d)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

    (i)either of the parents: or

    (ii)any other child, or significant person, with whom the child has been living.

    (e)The practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

    (f)The capacity of each parent, or another person, to provide for the needs of the child, including emotional and intellectual needs.

    (g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of other children and of either of the child’s parents and any other characteristics of the child that the reporter thinks are relevant.

    (h)Each parent’s attitude to the child and to the responsibilities of parenthood.

    (i)Any family violence involving the child or a member of the child’s family.

    (j)Such other issues as the Family Consultant considers relevant.

20. The parties shall attend all appointments with the Family Consultant and shall ensure the subject child attend all appointments with the Family Consultant, as requested by the Family Consultant.

21. The Family Consultant may inspect the Court file.

22. Upon the report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

23. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child to whom these proceedings relate:

    (a)A Children’s Court;

    (b)A child protection authority;

    (c)A State or Territory Legal Aid Authority; and

    (d)A convener of any legal dispute resolution conference.

24. Unless otherwise agreed, no person shall release the Report, or provide access to the Report to any other person.

25. The matter is to be listed on a date to be advised following release of the Family Report.

26. The parties are to file a jointly drafted agreed statement of issues 7 days prior to the directions hearing (for which a date will be provided following the release of the Family Report), together with an agreed minute of order for the further progress of the matter.

IT IS NOTED that publication of this judgment under the pseudonym Padula & Padula is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2354 of 2020

MR PADULA

Applicant

And

MS PADULA

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are short form reasons pursuant to s.69ZL of the Family Law Act 1975 (Cth) in respect of competing interim parenting applications concerning the child X, born in 2019.

2. The applicant in these proceedings is the father, Mr Padula born in 1988, and the respondent is the mother, Ms Padula born in 1984.

3. The matter came before the Court on 29 July 2020 for the first time. On that date the Court made Orders pending further Order that the child live with the mother and spend time with the father each alternate weekend from 9am until 4pm on Saturday and from 8am to 12pm on Sunday. Further orders were also made on that occasion for the provision of changeover and the listing of an interim hearing.

4. Shortly prior to the interim hearing, the parties jointly approached the Court seeking that interim parenting orders be made by consent with respect to X’s time with the father but that the interim hearing be adjourned for a period of six months. The Court advised the parties that if orders were to be made by consent then the Court would not be adjourning the interim hearing as the proposed consent orders resolved the interim dispute between the parties as to parenting. The parties pressed for an adjourned interim hearing. As such, rather than the matter being adjourned for mention following the making of the proposed interim orders by consent, the orders were not made by consent and the matter proceeded to interim hearing on 27 November 2020. The proper allocation of Court resources is not a matter for the parties.

5. On the day of the interim hearing, the parents were able to come to a consent position about the time the father spends with the child between the date of hearing and 16 January 2021, pending the delivery of this judgment.

6. The issues for determination in this matter are narrow. It is common ground that the child will live primarily with the mother and spend time with the father. The parents competing proposals centre around whether time between the father and child should gradually increase to two consecutive nights per fortnight or remain at one overnight per fortnight, with increased day time.

Agreed Facts

1. The parties commenced cohabitation in or about 2014. At that time they were residing in Suburb D, Western Australia. The parties eventually married in 2017.

2. Their only child, X was born in 2019.

3. The parties separated in or about July or August 2019.

4. The mother relocated to Sydney in July 2019 and moved to Suburb E on 29 September 2019.

5. The father is a public servant and was posted to City F, New South Wales in December 2019. He currently lives in Town G, New South Wales.

Relevant Evidence

1. The father says to the Court that:

   a)He separated from the mother on a final basis when she “absconded” with the child from their home in Western Australia on 26 July 2019. The father says that on 20 July 2019 he and the mother got into an argument after they all attended a friend’s housewarming party which resulted in the father saying “I think that we need to divorce”. The father maintains that he continued to care for X throughout the coming days as they were still all residing in the same home.

   b)On 26 July 2019, the mother left the former matrimonial home with the child while the father was at work and boarded a flight to Sydney. The father called the police concerned for their welfare and safety after realising that their belongings were cleared from the home and had failed to attend a scheduled appointment with their GP. He also attempted to contact the mother and her immediate family members for answers. The father says that his father-in-law eventually contacted him some time after and advised him that “Ms Padula has taken X and left for Sydney. She told the family not to speak to you until she was on the flight”.

   c)Prior to separation, the father was largely involved in the care of the child which included preparing meals, changing nappies and attending to him during the day and when he was unsettled during the night. The father also says that he was largely involved in the child’s care after his birth particularly as the mother had surgery shortly thereafter and X was experiencing difficulties with breathing that required a machine to assist him with breathing. X also developed jaundice after birth and the father says that he also attended to feeding X on a strict routine as the mother was recovering from surgery.

   d)Since separation, he has not spent any overnight time with X.

   e)He has had previous concerns about the mother commencing the child on an elimination diet, however as at November 2020, he no longer harbours those concerns as the mother has commenced feeding the child an unrestricted diet upon medical advice from a health practitioner.

   f)His mother will continue to make her home available to him in order to facilitate overnight time with him and X in the future.[1]

   g)Whilst there has been some difficulties with communication between the parents about spend time arrangements, the father has largely been able to engage positively with the mother, particularly after the Orders of 29 July 2020. The father says that he has spent regular time with X which has been successfully facilitated by the mother.[2]

   [1] Affidavit of Ms H filed 24 July 2020

   [2] The father provides exact dates and particulars about each occasion he has spent with X in his Affidavit filed 20 November 2020 at [19] – [32..3]

2. The mother says to the Court that:

   a)During the relationship and since separation, she was primarily responsible for the care of X.

   b)The parties relationship was rather tumultuous and on the mother’s evidence was marred by domestic violence perpetrated by the father.

   c)X relies on breastmilk 3 times a day and an average of 4 times during the night. The mother says she intends to continue to breast feed the child until he no longer “requested it anymore”. She further says that X currently also requests breastmilk during the day for comfort and to cope with new changes.

   d)She is agreeable to facilitate one overnight per fortnight between X and the father, however is concerned that two consecutive overnights per fortnight would not allow sufficient opportunity for X to adjust from being away from her primary care. The mother says that any approach for the father to spend time with X must be staged, child focused and conscious of his ordinary routine. As such, two consecutive overnights per fortnight as proposed by the father could have “a detrimental effect on X’s emotional and psychological development”.

   e)Since the Orders of 29 July 2020, she has observed X to be very unsettled at the commencement of time with his father and extremely tired upon return.

   f)Excessive travel to the father’s residence in Town G for a child of X’s age is not child focused, despite it only occurring one week in a 6-week rotation.

   g)X is due to commence day care in early 2021. It is not yet known what days he will be attending day care.

   h)The mother is returning to the workforce in early 2021. The details of her working hours are not known, nor are the proposed care arrangements for the child whilst she is at work.[3]

   [3] Presumably the child will be at day care, but it is not known how many days in day-care are proposed nor whether the mother’s employment is full-time, part-time or casual.

Court’s Determination

1. The principles in respect of interim hearings are well known, including that the legislative pathway must at all times be followed. Interim hearings are curtailed by the absence of cross-examination and testing of evidence in general, and the Court is often in a position where it is unable to make findings of fact.

2. Even in such constrained circumstances, the Court is still required to determine the applications before it.

3. In terms of a risk assessment, the Court is to determine that issue by weighing the probabilities of competing claims and the likely impact on the child in the event that a controversial assertion is acted upon or rejected.

4. The parents agree that X will benefit from having a meaningful relationship with the father. The concern for the mother at interim hearing was that there was a great unknown as to how X would cope with spending two consecutive nights with the father at his age and stage of development, noting that as at the date of the interim hearing he had not been spending any overnight time with the father.

5. At the time of the publication of these reasons for judgment, X has now been spending one overnight with the father per fortnight for almost two months. While in an ideal world, this little boy would get to spend more frequent time with the father than is currently the case, the practicalities are such that this cannot occur.

6. The mother raises many concerns about matters which may or may not happen. These concerns are not identified as unacceptable risks to the child in terms of his psychological or physical development or in any other manner. They are simply her concerns about how X will cope with travel, with being away from her and with being in a new environment, being the father’s home.

7. She does not voice similar concerns about X attending day care or his separation from her when she returns to work in early 2021. She does not explain how she proposes to adjust X’s breastfeeding when he starts day care or when she returns to paid employment. It is unclear how the mother’s proposals tie in with X continuing to be breastfed and it is not explained why the father’s proposal is inappropriate as far as X continuing to be breastfed is concerned, particularly noting the parents’ consent position as at the date of the interim hearing. It is therefore inferred that the issue of breastfeeding is not a reason as to why time between X and his father should not gradually increase to two overnights per fortnight as sought by the father.

8. The proposals contained in the mother’s application for time to increase by 2 hours each fortnight per 3 month period is a timetable that in the Court’s view makes no marked difference to the amount of time X would get to spend with his father. Given the distance between the parties’ homes in reality this would mean that the father would not be spending the time with X at his residence, but more likely his parents’ residence in Sydney. While this would have the benefit to X of also seeing his paternal grandparents, it would likely give him no opportunity of interacting with his father at the father’s home.

1. The father’s proposal on the other hand sees time increased each 3 month period, but more rapidly, and moving into two overnights per fortnight by March 2021, which is less than 4 months from the date of the interim hearing. Given X’s age and stage of development, and all of the other changes he will be facing in early 2021, a slower change in pace in terms of overnight time with the father is likely to be more to his benefit. This is what the orders provide for.

2. Even though the parents live some 3 hours apart, this is not an extraordinary distance for a little child to be travelling every six weeks.

3. As the mother’s work hours are unknown, changeover will occur at the end of the ordinary working day on the weekends when X is spending two overnights with the father.

4. Provision for special occasions and other specific issues are made in accordance with the parents’ proposed minute of consent order, which although the father resiled from at interim hearing in respect of time, the parties did not resile from in respect of those other matters.

5. Given that there is no evidence of any immediate long-term issues which might require a parental decision, or that the parents have been unable to jointly make any such long-term decisions, the Court declines to make any order for parental responsibility. This leaves the situation in accordance with the relevant legislative provisions.

6. Rather than bringing the matter back for a mention, orders will be made to progress the matter for a final hearing, in particular for the preparation of a Family Report which in the circumstances of this case is appropriate. The parents are of course encouraged and ordered to continue their negotiations with a view to resolving all issues between them.

7. For those reasons, orders as set out at the forefront of these Reasons for Judgment are made.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Associate: 

Date: 25 January 2021