PAGAN & BEATTIE (No.4)

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAGAN & BEATTIE (No.4)

[2020] FCCA 820

Catchwords:
FAMILY LAW – Parenting – presumption of equal shared parental responsibility applied – whether child is to spend equal time or significant and substantial time with the mother – child to spend equal time with parents.

Legislation:

Family Law Act 1975 (Cth), ss.65DAA, 65DAC

Applicant:

MR PAGAN

Respondent:

MS BEATTIE

File Number:

PAC 5622 of 2016

Judgment of:

Judge Obradovic

Hearing dates:

6 - 7 April 2020

Date of Last Submission:

7 April 2020

Delivered at:

Parramatta

Delivered on:

9 April 2020

REPRESENTATION

Counsel for the Applicant:

Mr Maddox

Solicitors for the Applicant:

Puelo Lawyers

Counsel for the Respondent:

Mr Cairns

Solicitors for the Respondent:

Ross & Rowley Lawyers

ORDERS

All prior parenting orders with respect to the child X born in 2014 are discharged.
The parents shall have equal shared parental responsibility for X.
During school term, following the April 2020 school holidays, X shall live with the father and spend time with the mother as follows:
(a)From after school on Thursday, 23 April 2020 to before school on Monday, 27 April 2020;
(b)From after school on Thursday, 7 May 2020 to before school on Monday, 11 May 2020;
(c)From after school on Wednesday, 20 May 2020 to before school on Monday, 25 May 2020;
(d)From after school on Wednesday, 3 June 2020 to before school on Monday, 8 June 2020 (notwithstanding that this is a public holiday);
(e)From after school on Tuesday, 16 June 2020 to before school on Monday, 22 June 2020;
(f)From after school on Monday, 29 June 2020 to before school on the last day of term being Friday, 3 July 2020; and
(g)At all other times as agreed between the parents in writing.
During school term, following the July 2020 school holidays and commencing on the first Monday of the school term, X shall live with each of her parents on a week about basis as follows:
(a)In week one of a two week rotating cycle with the mother from before school or 8:30am on Monday to before school or 8:30am on the following Monday; and
(b)In week two of a two week rotating cycle with the father from before school or 8:30am on Monday to before school or 8:30am on the following Monday.
During school holidays X shall spend time with:
(a)her father for half the school holidays being the first half in even-numbered years and the second half in odd-numbered years and;
(b)her mother for half the school holidays being the second half in even-numbered years and the first half in odd-numbered years.
With changeover being at 5pm on the middle day of the school holidays, with the parent with the first half to collect X from school and the parent with the second half to deliver X to school at the conclusion of X’s time with that parent.
Notwithstanding any other order X shall spend time with the mother on the Mother’s Day weekend each year from after school on Friday until before school on the following Monday.
Notwithstanding any other order X shall spend time with the father on the Father’s Day weekend each year from after school on Friday until before school on the following Monday.
Notwithstanding any other order X shall spend time with the mother in each odd-numbered year from 10am on 24 December to 5pm on 25 December and in each even-numbered year from 5pm on 25 December to 10am on 27 December.
Notwithstanding any other order X shall spend time with the father in each odd-numbered year from 5pm on 25 December to 10am on 27 December and in each even-numbered year from 10am on 24 December to 5pm on 25 December.
For the purposes of changeover, other than for collection from or delivery to school, the mother shall collect X from the father’s residence at the commencement of X’s time with the mother and the father shall collect X from the mother’s residence at the commencement of X’s time with the father.
The parents are at liberty to communicate with X by telephone or Skype or Face Time as often as is reasonably practicable and as agreed between the parents but if not agreed then each Saturday and Wednesday between 6.00pm and 6:30pm.
The parents shall use their best endeavours to communicate with each other in a polite and respectful fashion.
Within seven days each of the parents shall advise the other in writing of their current residential address and telephone number and keep the other parent informed as soon as is practicable of any change to their respective addresses or telephone numbers, and advise each other of any other place where the child may stay overnight.
The Court requests that the Australian Federal Police remove the name of the child, X born in 2014 from the Airport Watch List at all points of international arrivals and departures in Australia.
Each parent may take X overseas for no more than five weeks in each two-year period provided that:
(a)the parent taking X give the other parent at least four weeks’ notice;
(b)at least 14 days prior to travel, the parent taking X give the other parent details of X’s travel itinerary, including telephone numbers and contact details while overseas, and dates of departure and arrival in Australia;
(c)the parents do all acts and things necessary to renew X’s Australian passport when required to do so by one of the parents.
Each of the parents are entitled to attend all school, sporting and extracurricular activities to which parents are normally invited.
Each parent promptly inform the other of any serious injury or hospitalisation suffered by X.
Remove all outstanding issues from the list of cases awaiting finalisation.

IT IS NOTED that publication of this judgment under the pseudonym Pagan & Beattie (No.4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5622 of 2016

MR PAGAN

Applicant

And

MS BEATTIE

Respondent

REASONS FOR JUDGMENT

Introduction

These are parenting proceedings in respect of the parties’ only child X who was born in 2014.
The issues for determination by the Court are fairly narrow. They are firstly, whether X is to spend equal time or significant and substantial time with the mother, secondly where changeover is to occur and thirdly, whether the parties should be permitted to travel with the child internationally and/or whether the child’s name should remain on the airport watch list.
The major point of contention is whether the child should:
a)spend time with the mother from Friday after school to Monday before school each alternate weekend, half the school holidays, and on special occasions – as is the father’s application; or
b)spend time with the mother in week one in a two week cycle from after school on Friday to before school the following Friday and in week two with the father from after school on Friday to before school the following Friday. In essence in a week about arrangement from Friday to Friday with each of her parents – as is the mother’s application.
The father, his partner, and the paternal grandmother gave evidence in the father’s case.
The mother was the only witness to give evidence in the mother’s case.
The Court was also assisted by the evidence of Mr A who is the author of the Family Report dated 7 December 2018 which was released to the parties on 14 December 2018 and who was cross-examined by both parties’ Counsel.

Parental Responsibility

The parents agree that there should be an order for equal shared parental responsibility.
The Court accepts the submission made on behalf of the father that while there is some evidence about potential difficulties in communication between the parties, there is no evidence that would contraindicate an order for equal shared parental responsibility, and indeed no evidence that rebuts the presumption of equal shared parental responsibility.
The Court finds that the parties have, by and large, been able to comply with their obligations pursuant to section 65DAC of the Family Law Act 1975 (Cth) (“the Act”) which requires them to jointly make decisions in light of the interim orders for equal shared parental responsibility which have been in effect since April 2017.
The Court finds on the balance of probabilities, that the parties have the capacity to make such joint decisions as may be required in respect of major long-term issues. It is for that reason that the Court will be making an order for equal shared parental responsibility.
The making of an order for equal shared parental responsibility triggers the operation of section 65DAA of the Act, namely the Court must consider whether the child spending equal time with each of her parents would be in her best interest and consider whether the child spending equal time with each of the parents is reasonably practical and if it is, consider making an order to provide for the child to spend equal time with each of her parents.
In circumstances where the Court does not make an order for equal time, the Court is then obliged to consider whether the child spending substantial and significant time with each of the parents would be in her best interest, whether the child spending significant and substantial time with each of her parents is reasonably practicable and if it is to consider making an order to provide for the child to spend significant and substantial time with each of her parents.
Counsel for the father conceded that the father’s application as it stands does not provide for significant and substantial time pursuant to s65DAA(3) of the Act, but that an order which would see the child spending from after school on Friday to before school on Tuesday each alternate weekend would see the child spending significant and substantial time with the mother.
The mother’s case is that if the Court was not minded to make an order for equal time then there should be an order that the child spend 6/14 days with the mother each fortnight.

Chronology

The parties commenced a relationship in or about early 2013, having met at work.
In about 2014 the parties commenced living together at the father’s parent’s property in Suburb B, where they remained living until December 2015.
The parties’ only child X was born in 2014.
In December 2015, the parties moved together with X to Queensland where they lived until separation in October 2016.
Apart from a short period after giving birth to X, the mother has remained working full-time while the father has had time off work, during which he was looking after X on a full-time basis before returning to work, firstly on a part-time basis and thereafter on a full-time basis.
On 1 October 2016, the father returned to Sydney with the child pursuant to an agreement that the parents had.
On 6 October 2016, the mother attended the father’s home with her father and stepmother for the purposes of collecting the child. An incident occurred at the father’s home which resulted in the mother leaving with the child in her parent’s car, and her parents leaving the father’s property on foot.
The mother says that she told the father that she and X would be living with her parents in Suburb C, while the father asserts that he was not aware of where the child and the mother would be living or were living after the mother took the child on 6 October 2016.
What occurred thereafter was that the mother left X with her parents in Suburb C and went to Queensland against her parent’s wishes. The mother says she was in Queensland without X for a few weeks only.
In any event, a recovery order was made by this Court further to an urgent application brought by the father on 30 November 2016, together with interim orders for the child to live with the father and spend time with the mother as agreed between the parties in writing.
When the matter was next before the Court, namely on 6 April 2017, the Court made further interim orders by consent of the parties for X to live with the father and to spend time with the mother each alternate week from 10am on Friday until 5pm on the following Sunday. At that time there was also an order, pending further order, for the parents to have equal shared parental responsibility.
Subsequently an order for the preparation of the Family Report was made and after that report was released in December 2018, in May 2019 the mother filed an Application in the Case seeking to vary the interim orders.
Rather than press on with her interim application with a view to getting hearing dates as quickly as possible the mother withdrew her Application in a Case and ultimately the matter was set down for final hearing with priority in March 2020.
For reasons related to the coronavirus epidemic which is presently sweeping the world, those hearing dates were vacated and the matter ultimately proceeded to final hearing on 6 and 7 April 2020 via video link.

Relevant Considerations

Neither party made any submissions or ran a case that there was a need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence.
Both parties agreed that there was a benefit to X of having a meaningful relationship with both of her parents, it was the extent of time that X should spend with each of her parents that the parties were in disagreement about and whether a meaningful relationship could be fostered if the child spent limited time with one of her parents.
These proceedings are not about what is fair to the parents. They are about X’s rights and in particular her right to know and be cared for by both of her parents.[1]
[1] being one of the principles underlying the objects of Part VII of the Act.
At the time of the Family Report interviews which occurred on 13 November 2018, X was three years and two months old. She was not interviewed by the Family Consultant, however she was observed with both of her parents. There is some evidence in the parties’ material, as to the child’s express wishes. However no submissions were made by either party that the child’s stated wishes to either of her parents was evidence which ought to be given any real weight.
Mr A’s opinion is that the child presented as a healthy and emotionally secure child. She remained active and involved throughout the sessions and related to both of her parents, and to the father’s partner, with enthusiasm and delight.
According to Mr A there was nothing in the observation session which emerged to discriminate between the parties in terms of the child’s level of attachment to each of them.
According to Mr A, the child showed no avoidance behaviour and related to each of her parents with equal affection. However, Mr A acknowledged in cross-examination the limited nature of the observations.
Mr A’s opinion of the father is that he impressed him as a concerned and committed parent, who firmly believed that the child should live with him because she is in a routine. Mr A also gave evidence that the impression the father gave during the Family Report interviews was that he wanted to create a family around the child and his partner and to exclude the mother from the child’s life.
This was something that was strongly opposed in submissions made on behalf of the father and indeed, it was submitted on behalf of the father that the Court should not accept Mr A’s evidence as to the father’s motivations. That is, that the Court should not accept that the father’s motivation was to sideline the mother.
It was submitted on behalf of the father that the better view for the Court to take is that the father’s view is that he is able to provide a better base for the child, that is, that X has a firm home base with the father; something which is in her best interest to retain even if she was to spend more time with the mother then she is currently spending.
Both to Mr A and to the Court, the father stated that his proposal for the child to spend time with the mother was sufficient for the child to maintain that important relationship with the mother.
When asked whether, if the child lived with the mother and was to spend alternate weekends with the father, such time would be sufficient to maintain the important relationship the child has with the father, the father stated that this would not be enough time and that he would be asking for orders as he is asking now, that is for X to live with him or alternatively that it should be half-time or more.
The father’s evidence is that the mother’s lifestyle and ability to parent means that she cannot look after the child; the father had concerns about the mother’s working conditions and living conditions, namely that her lack of support and working hours hindered her ability to appropriately parent X. There was also a suggestion in the father’s evidence that the mother suffered from mental health issues, a matter which was not pressed in submissions.
Unfortunately for the father’s case there was no objective evidence that the mother lacked any capacity to parent X properly, that she was unable to meet her physical or emotional needs, or that she was not available to look after the child in a manner which was appropriate.
Furthermore, when one breaks down the evidence, the mother’s working hours allow her to spend more one-on-one time than the father’s working hours allow him to spend one-on-one with the child. The father is indeed very lucky to have the strong support of his extended family and partner in looking after X when he is personally not able to do so.
X has had the benefit of both of her parents as well as the father’s extended family looking after her needs for most of her life. She is indeed a very lucky child to have such a supportive family environment and to be so loved and cherished by all members of not only her immediate family but also her extended family.
While the father’s Counsel was very careful to make appropriate submissions, the father’s case was that:
a)The mother put her own needs above those of X in October 2016 when she left her with her parents and travelled to Queensland without X;
b)Because the mother did not make it to X’s school on time on X’s first day of school and because the mother did not answer a phone call on 7 February 2020, which turned out to be a phone call from the child’s school requesting that the child be picked up because she was ill, the mother lacked capacity to parent the child in an appropriate way.
The fact that these matters, which in the context of all of the evidence are either historical or very minor, were put as part of the father’s case on instructions, leads the Court to infer that the father indeed does have the attitude or motivation to exclude the mother from the child’s life. Such an inference is further supported by the evidence of the father:
a)that he chooses not to speak to the mother face-to-face because he does not want to get into an argument with her, in circumstances where there is no evidence that the parties have not been able to agree about matters since the child has been living with the father;
b)where the father has not told the mother about medical appointments for the child in respect of her ‘lazy eye’ or indeed about exercises that the child has been prescribed to improve that medical condition; and
c)where the father permitted a situation where a three-year-old child was referring to a woman who was not her mother, and who at the time had been in a relationship with the father for only a matter of a few months, as “mum”.
In respect of this last matter, Counsel for the father submitted that the father and his partner had tried to discourage the child from referring to the father’s partner as “mum”. Notwithstanding such discouragement two years on the child still refers to the father’s partner as “mum”. In those circumstances it is difficult to accept the father’s evidence that the child had been truly discouraged from referring to Ms D as “mum”.

Mr A was unmoved during cross-examination from his recommendations in the Family Report, namely that an equal care parenting arrangement was in X’s best interest and that because X had spent relatively little time with her mother over the past two years (at the time of the report) that equal care ought to apply as soon as possible.
Indeed Mr A remained strong in his opinion that if X’s time with the mother remained as it presently is, and in accordance with the father’s application for alternative weekends that this would pose limited time with the mother:
a)in which X would not be able to experience a normal relationship with the mother where she would be exposed to all the usual things that a child would be exposed to with a parent; and
b)that X would not have the chance to model and learn from her mother.
Mr A opined that all of these things are being denied to X because of the time that she spends with the father.
Importantly, Mr A recognised a risk to X that as she grew and continued living in an arrangement which was similar to the one which the father proposed on a final basis, that is where she lived with her mum for two to three days a fortnight, that she would then start to question what was wrong with the mother and indeed what was wrong with her.
A matter of concern for the Court, in the face of the very strong recommendations by Mr A and the matters which are addressed in the Family Report which was released to the parties in mid-December 2018, is the father’s unwillingness to move to a scenario which would see X spending more time with the mother then the alternate weekends and which would provide for that relationship to be given priority over X’s relationships with members of the father’s household and X’s relationship with the father’s partner.
While it is correct that the father has a large and available support network with which he has been able to parent X, the fact that the mother does not have such an extensive support network does not need to result in X being deprived of a substantial relationship with the mother.[2]
[2] Mr A’s evidence in cross-examination
Mr A’s opinion of the mother was that she was an intelligent and capable woman who could make provision for support in circumstances that might arise where she may not personally be available to care for X or in cases of an emergency. Certainly this is an opinion which the Court accepts and otherwise a finding which is open to the Court to make, and which the Court does make, on the evidence.
X is currently enrolled in a Catholic school, after an agreement was reached between the parents in respect of such enrolment.
The father pays the entirety of X’s school fees. The mother agreed to the proposition that if X was living with her for half the time that she would then meet half the school costs, but she was unable to say otherwise why it would not be appropriate or fair that she contribute to such school fees. She said that she had simply never turned her mind to it and that because it was the father’s choice to send her to a Catholic school (one that she agreed to) then really the school fees should fall on the father.
The father has not applied for child support, notwithstanding that both of the parents work and that the father has been X’s primary carer since at least the interim orders were made in April 2017. Each of the parents financially support X during the periods of time that she is with that parent.
There is little evidence about any communications which the parents have had about reaching agreement for X to spend time with the mother other than the minimal time which the orders provide for.
Certainly it was not until 18 March 2020, almost three years since the interim orders were made, that there was agreement between the parties for the child to spend time with each of her parents for block periods during school holidays. This may be because X had not started formal schooling until this year, but it may be for other reasons. However, the Court is not going to speculate about that given the lack of evidence in each of the parties’ cases about these matters.
If an order was to be made for X to live with the mother on an equal time arrangement and as recognised in the Family Report, there would need to be a period of time for X to adjust to such a regime. She has after all been in the father’s primary care for four years now and she has had significant involvement by the extended paternal family in her everyday life.
X has also had the benefit of spending time with her extended family on the mother’s side during periods of time when she has been spending time with the mother. Indeed for a period of 12 months after the orders were made in 2017 the mother lived with the maternal grandmother in Newcastle and made a significant effort to travel to and from Sydney each alternate weekend to spend time with X. The effort that the mother went to is testament to her capacity and willingness to put the child’s needs above her own.
There is no practical difficulty or expense with the child spending significant and substantial time with either of her parents and indeed there is no practical difficulty or expense with the child living with each of her parents in an equal time arrangement. The parents live in relative proximity of each other and are about equal distance from the child’s school.
There is no evidence of any difficulties at changeover and indeed there appears to be an amicable relationship between the father’s extended family, his partner and the mother.

Court’s Determination

The Court finds that X’s best interests, having regard to the relevant legislative provisions as reasoned above, are met by an order that she live with each of her parents on an equal time basis.
In order to facilitate a transition period so that X can get used to this arrangement there will be a short period of time during which X’s time with the mother will gradually be increased.
In respect of changeovers, the parties agree that changeover should occur either at the child’s school or by each of them attending at the others residents at the commencement and conclusion of the child’s time with that parent.

International Travel

Lastly in relation to international travel, there is no evidence which would support a finding that the father is a flight risk (as conceded by mother’s Counsel), and that the child’s name should remain on the airport watch list.
The father was born in the Country E and his partner of three years is a Country F citizen. The father has through his evidence expressed a wish to travel internationally with the child not only for the purposes of giving the child the opportunity of learning about her culture but also for the purposes of the child’s broader learning and experience.
The father asks for an order that the parties be permitted to travel with the child for a period of no more than five weeks each calendar year an order which the Court is not minded to make as it could potentially see the child spending each of the Christmas school holiday period with the father overseas.
An order will therefore be made permitting the parents to travel with the child without the consent of the other parent for a period of no more than five weeks each two years, those five weeks being cumulative.

Conclusion

For all of the above reasons, the Court makes orders as set out at the forefront of these Reasons.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 9 April 2020

[2020] FCCA 820

9 April 2020

Key Legal Topics

Areas of Law

Family Law

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Jurisdiction

Remedies